STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED April 15, 2010 v No. 286768 Wayne Circuit Court JAMES TAYLOR, LC No. 07-014233-FH Defendant-Appellant. Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ. PER CURIAM. After a bench trial, the court convicted defendant of possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to five years probation for the possession with intent to deliver marijuana conviction, and two years imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm. Defendant s sole claim on appeal is that the prosecutor failed to present sufficient evidence to convict him of possession with intent to deliver marijuana and felony-firearm. We review a defendant's allegations regarding sufficiency of the evidence de novo. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). We view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id. However, we will not interfere with the role of the trier of fact to determine the weight of the evidence or the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748, amended 441 Mich. 1202 (1992). Satisfactory proof of the elements of the crime can be shown by circumstantial evidence and the reasonable inferences arising therefrom. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). It is for the trier of fact to determine what inferences fairly can be drawn from the evidence and the weight to be accorded to those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). All conflicts in the evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997). A conviction for possession with intent to deliver marijuana requires proof, among other things, that the defendant knowingly possessed the marijuana and that he knew that the substance was marijuana. MCL 333.7401(2)(d)(iii); People v Crawford, 458 Mich 376, 389; 582 NW2d -1-

785 (1998). A defendant need not own a controlled substance or have actual physical possession of it when it is discovered to have possession of it. Wolfe, supra at 519-520. The controlled substance may be constructively possessed or jointly possessed. Id. at 520. Here, viewing the evidence in the light most favorable to the prosecution, we hold that sufficient evidence connected defendant to the marijuana. The police were executing a search warrant that was issued as a result of a controlled buy involving another individual at an upstairs apartment at 5259 Chatsworth. The door to the upstairs apartment was open when officers arrived. The officers observed defendant walking out of a rear bedroom in that apartment. During a search of the apartment officers found a shoebox containing bags of marijuana, a scale, and two handguns (a.40 caliber Glock, blue steel automatic and a.45 caliber blue steel automatic) in an open closet in one of the rooms. The marijuana was packaged in large, clear baggies, and one of the baggies contained 20 or so zip lock bags of marijuana. 1 Also inside the apartment officers found an envelope addressed to James Art Taylor, and the envelope contained HMO medical cards for James Art Taylor. The medical cards indicated a birth date of 11/4/2000. Considering the circumstantial evidence, the reasonable inferences arising therefrom, and the totality of the circumstances, and resolving all evidentiary conflicts in favor of the prosecution, there was sufficient evidence to show that defendant constructively possessed the marijuana. Defendant s presence in a bedroom in the upstairs apartment, as well as a letter with the address 5259 Chatsworth and a medical insurance card, both with the name James Art Taylor on them, provide evidence that defendant had dominion and control over the upstairs apartment and that defendant constructively possessed the marijuana found in it. Defendant makes much of the fact that the medical cards belonged to someone with a birth date of November 4, 2000, but it is reasonable to infer that the medical cards found in an envelope addressed to James Art Taylor at the 5259 Chatsworth address were for defendant s minor son. Further, the evidence was sufficient to support a finding that defendant knew that the substance was marijuana. Based on the packing of the marijuana and its discovery in a shoebox in a closet, it is reasonable to infer that whoever possessed it realized its resale value and that it was marijuana. Defendant also argues that the evidence was insufficient to support a finding that defendant possessed a firearm. A conviction for felony-firearm requires proof that a defendant possessed a firearm during the commission of a felony. Possession of a firearm includes both actual and constructive possession. A defendant has constructive possession of a firearm if the location of the weapon is known and it is reasonably accessible to the defendant. People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000). When a defendant is charged with felony-firearm, and the underlying felony is drug possession, the Court can consider the proximity of the firearm to the drugs when determining whether constructive possession of the firearm was simultaneous with the drug possession. 1 The parties stipulated at trial to the fact that the bags contained marijuana. -2-

Burgenmeyer, supra at 440. Here, marijuana was found in a shoebox in an open closet. We have already concluded that the evidence was sufficient to support a finding that defendant possessed the marijuana. Two firearms were found in the same shoebox as the marijuana, and therefore they were sufficiently close to the marijuana that the jury could determine that defendant possessed both simultaneously with the marijuana. Id. Affirmed. /s/ E. Thomas Fitzgerald /s/ Kurtis T. Wilder -3-

Brown: Yes, sir. It s Total Health cards in the name of James R. Taylor at 5259 Chadsworth [sic]; Detroit, Michigan 48224. It is someone s HMO medical cards. Prosecutor: All right. And it has the defendant s name on it, and it has the address of Chadsworth [sic] Street? Brown: That s correct. Prosecutor: Now, looking at the cards there, the card actually has a birthday; is that correct? On the cards; the actual medical cards. Brown: That s correct. Prosecutor: And what s the birthday on there? Brown: That would be 11/4 of 2000. Prosecutor: Okay. Which would make the person about eight, seven years old? About seven years old. Brown: Seven years old; that s correct. Prosecutor: And where did you find that at? Brown: This was recovered from the premises upstairs living room. On cross-examination, Lieutenant Brown admitted that because defendant s date of birth is September 30, 1974, the health card did not belong to him. The prosecutor introduced no additional evidence that connected defendant to 5259 Chatsworth. For example, no evidence tended to support that defendant resided in the upper flat or had ever touched the drugs and guns found in the closet. And no evidence established defendant s address or that the police found defendant s clothes or other personal items in the upstairs flat. The majority opines that it is reasonable to infer that the medical cards found in an envelope addressed to James Art Taylor at the 5259 Chatsworth address were for defendant s minor son. Ante at 3. I agree that this is a reasonable inference. However, I respectfully disagree with the majority s conclusion that the inference supporting that the cards belonged to defendant s son equates to sufficient evidence that defendant lived in the upstairs flat or possessed any knowledge about the contents of its closets. In my view, the circumstantial evidence supporting defendant s constructive possession of the contraband in the shoebox qualifies as entirely speculative and conjectural, and thus insufficient to support defendant s convictions. When determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the -2-

crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992). This standard, articulated in Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), reflects an attempt to give concrete substance to a criminal defendant s due process rights. Wolfe, 440 Mich at 514. The beyond a reasonable doubt standard requires that the fact finder reach a subjective state of near certitude of the guilt of the accused.... Jackson, 443 US at 315. Defendant s convictions for possession with intent to deliver marijuana and possession of a firearm during the commission of a felony required proof beyond a reasonable doubt that he knowingly possessed the contraband, either actually or constructively. Wolfe, 440 Mich at 517; People v Hill, 433 Mich 464, 470-471; 446 NW2d 140 (1989). Because no evidence showed that defendant actually possessed the marijuana or guns found in the closet, the prosecutor bore the burden to establish that defendant constructively possessed them. A person constructively possesses an item if he knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.... Hill, 433 Mich at 470, quoting United States v Burch, 313 F2d 628, 629 (CA 6, 1963). Circumstantial evidence and the reasonable inferences that arise from the evidence can constitute satisfactory proof of possession. People v McGhee, 268 Mich App 600, 623; 709 NW2d 595 (2005). However, a defendant s mere presence near contraband does not prove knowing possession or an ability to control it. In Wolfe, 440 Mich at 520, the Supreme Court reiterated the well established principle that a person s presence, by itself, at a location where drugs are found is insufficient to prove constructive possession. To support a conviction premised on constructive possession, the prosecution must demonstrate some additional connection between the defendant and the contraband.... Id. In People v Hardiman, 466 Mich 417, 422-423; 646 NW2d 158 (2002), the additional connection[s] between the female defendant and narcotics discovered in an apartment included the presence of narcotics in the pocket of a dress hanging in a bedroom closet, other clothes in the bedroom belonging to a woman, and letters addressed to the defendant discovered in the bedroom s nightstand and the apartment s mailbox. In McGhee, 268 Mich App at 623, this Court identified several evidentiary links between defendant and the property where narcotics were found, including a utility bill, vehicle and other insurance documents bearing the defendant s name and the raid address, and the defendant s driver s license and a property deed both reflecting the raid address. This evidence sufficed to indicate defendant s ownership and control of the location at which drugs were found at the time when they were found. Id. In contrast, the prosecutor here introduced only mere presence evidence linking defendant and the marijuana and firearms in the closet. The contraband was not in plain view. The medical insurance card did not belong to defendant. The prosecutor presented no evidence of utility bills, lease agreements, or even a driver s license connecting defendant to the premises. In my view, no plausible inference permits a fact finder to conclude that the presence of an insurance card, presumably belonging to defendant s son, established beyond a reasonable doubt defendant s dominion and control over the upper flat. While the trier of fact may draw reasonable inferences from facts of record, it may not indulge in inferences wholly unsupported by any evidence, based only upon assumption. People v Petrella, 424 Mich 221, 275; 380 NW2d 11 (1985). Stated differently, when the evidence does not rise above the threshold of speculation and conjecture, the prosecutor has not established guilt beyond a reasonable doubt. -3-

The evidence introduced here does not even come close to giving rise to a reasonable inference that defendant knew that a shoebox in the front closet contained marijuana and weapons. To convict defendant, the trial court had to assume that the insurance card belonged to defendant s son, and that the insurance card s presence in the flat meant that defendant had the right to control the entire premises. The first inference qualifies as reasonable, but the second does not. Because no evidence reasonably tends to prove that defendant lived in the flat, frequently visited, or had reason to know of the marijuana and firearms in the closet, I would reverse. /s/ Elizabeth L. Gleicher -4-