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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 12, 2015

v No. 318217 Allegan Circuit Court ALLEN LANE WALKER, LC No. 12-017578-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

P ER C URIAM

.

Following a jury trial, defendant was convicted of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv). The trial co urt sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 20 to 240 mont hs’ imprisonment. Defendant appeals as of right. Because the prosecutor presented sufficie nt evidence to support defendant’s conviction, the trial court did not abuse its discretion in adm itting other-acts evidence, and there was no plain error in the admi ssion of the investigating police officer’s testimony, we affirm.

In the early morning hours of December 11, 2011, defendant was at the Gun Lake Casino. Mark Henrickson, a security officer at the casino, was walking the casino floor. After defendant walked past a certain a rea, Henrickson saw what he th ought was a piece of trash on the floor. He retrieved the object from the floor and discovered that it was a baggie, inside of which were 7 other baggies, containing a total of approximately 8.42 grams of a white material. The substance from one of the seven baggies was tested, and it test ed positive for the presence of cocaine. As noted, defendant was convicted of possession with intent to deliver less than 50 grams of cocaine in violati on of MCL 333.7401(2)(a)(iv). Defen dant now appeals as of right.

On appeal, defendant first argue s that his conviction was not supported by sufficient evidence. In particular, defendant contends that, because the casino was open to the general public and no one directly saw defendant with drugs, the eviden ce presented was insufficient to establish that he possessed the cocaine discovered on the casin o floor.

We review a challenge to the sufficiency of the evidence de no vo. People v Cline , 276 Mich App 634, 642; 741 NW2d 563 (2007). We review the evidence in the light most favorable to the prosecution to determine whether a rational trier of fac t could find that the evidence proved the essential elements of the crime beyond a reasonable doubt. People v Harverson , 291 Mich App 171, 175; 804 NW2d 757 (2010). “All conflicts in the evidence must be resolved in-2- favor of the prosecution and we w ill not interfere with the jur y’s determinations regarding the weight of the evidence and the credibility of the witnesses.” People v Unger , 278 Mich App 210, 222; 749 NW2d 272 (2008). Circumstantial evidence and rea sonable inferences arising therefrom can constitute satisfactory proof of the elements of the crime. People v Williams , 268 Mich App 416, 419; 707 NW2d 624 (2005).

The elements of the charge of possession with intent to delive r less than 50 grams of cocaine are as follows: (1) the defendant knowingly possessed a controlled substance; (2) the defendant intended to deliver the substance to someone else; (3 ) the substance possessed was cocaine and the defendant knew it was cocaine; and (4) the subs tance weighed less than 50 grams. See MCL 333.7401(2)(a)(iv); see also People v Crawford , 458 Mich 376, 389; 582 NW2d 785 (1998). The essential question relating to possessionof narcotics is “whether the
defendant had dominion or control over the controlled substance .” People v Konrad , 449 Mich 263, 271; 536 NW2d 517 (1995). A person’s mere presence at a l ocation where drugs are discovered does not prove possess ion; rather, there must be “so me additional connection
between the defendant and the contraband.” People v Wolfe , 440 Mich 508, 520; 489 NW2d 748, 754 (1992), amended 440 Mich 508 (1992). In other words, possession is attributed to those who have actual physical possession of drugs as well as t hose who, under the totality of the circumstances, have a “sufficient nexus” to the contraband to i ndicate constructive possession. People v Johnson , 466 Mich 491, 500; 647 NW2d 480 (2002).

In this case, although no one act ually saw cocaine in defendan t’s possession, the evidence
and reasonable inferences arisi ng therefrom was sufficient to a llow the jury to conclude beyond a
reasonable doubt that defendant possessed the cocaine found on the casino floor. Specifically, Henrickson testified that he was walking in the opposite direct ion as defendant. Importantly, the
area of the casino floor in frontof defendant was clear. But, immediately after defendant walked past this area, the baggie was on the floor. Although Henricks on did not see anything fall from defendant’s person, no one other than defendant had been in the area where he saw the baggie. Aside from Henrickson’s testimony, the jury also viewed a recor ding of the surveillance footage of the incident. In the recording, Henrickson can be seen pick ing up the baggie, which appears as a white dot, from the casino floor. The recording also show s that the baggie was not on the floor before defendant walked by the area and that no one else walked in that area between when defendant walked by and when Henrickson picked up the baggie. Given that no one else had passed through this area, a reas onable inference arising from the appearance of the baggie after defendant walked by is that the baggie of cocaine fell, or was dropped, from defendant’s person, and thus the jury could reasonabl y conclude that defendant had possession of the cocaine in question. Accordingly, viewing Henrickson’s testimony and the surveillance footage in the light most favorable to the prosecution, a rational trier of fact cou ld find beyond a reasonable doubt that defendant possessed the cocaine. See Harverson , 291 Mich App at 175.

Next, defendant argues that the trial court erred in admitting evidence of his 2009 arrest under MRE 404(b). In particular, defendant asserts that this e vidence should not have been admitted because the facts surrounding his 2009 arrest were ins ufficiently similar to the present offense. Given the purportedly dissimilar facts, defendant mai ntains that there was no proper purpose for the evidence’s admission and instead the prosecutio n impermissibly used the otheracts evidence as propensity evidence. Further, defendant argue s that the other-act’s probative value was substantially outwe ighed by the possibility of unfair prejudice and jury confusion.-3- “The admissibility of other acts evidence is within the trial court’s discretion and will be reversed on appeal only when there has been a clear abuse of di scretion.” People v Waclawski

, 286 Mich App 634, 669-670; 780 NW 2d 321 (2009). A trial court abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes. People v

Orr , 275 Mich App 587, 588-589; 739 NW2d 385 (2007). A trial cour t’s decision on a close evidentiary question ordinarily cannot be an abuse of discretio n. People v Sabin (After Remand)

, 463 Mich 43, 67; 614 NW2d 888 (2000).

MRE 404(b) prohibits the admission of evidence of “other crime s, wrongs, or acts to . . . prove the character of a person in order to show action in conf ormity therewith.” MRE 404(b)(1). See also Crawford , 458 Mich at 383. Although other-acts evidence may not be use d to demonstrate a person’s charact er or propensity to commit a c rime, it may be admissible for other purposes, including, for example, proof of intent or know ledge. MRE 404(b)(1). To
introduce evidence unde r MRE 404(b):

First, the prosecutor must offer the “prior bad acts” evidence under something other than a character or propensity theory. Second, “the evid ence must be
relevant under MRE 402 . . . .” Th ird, the probative value of the evidence must not be substantially outweighed by unfair prejudice under MRE 4 03. Finally, the trial court, upon request, may provide a limiting instruction u nder MRE 105. [ People v Knox , 469 Mich 502, 509; 674 NW2d 366 (2004) (citations omitted).]

Under this framework, the first question to be addressed is wh ether the prosecutor has articulated a proper non-character purpose for the admission of the evidence in question. Crawford , 458 Mich at 385. A proper purpose for the admission of other -acts evidence is one that seeks to accomplish something other than establishing the defendant’s character or propensity to commit the offense. People v Magyar , 250 Mich App 408, 414; 648 NW2d 215 (2002). A mere “mechanical recitation” of a proper purpose doe s not, however, justify
admission of other-acts evidence. Crawford , 458 Mich at 387. Rather, the prosecutor also bears the burden of showing that the evidence is logically relevant t o a proper purpose. People v

Mardlin , 487 Mich 609, 615; 790 NW2d 607 (2010).

To be relevant, evidence must be both material and probative. Crawford , 458 Mich at 388. To be material, the evidence must relate to “any fact tha t is of consequence to the action.”

Id. (citation omitted). Whether the evidence also has probative v alue depends on “whether the proffered evidence tends ‘to make the existence of any fact tha t is of consequence to the determination of the action more probable or less probable than it would be without the
evidence.’” Id. at 389-390, quoting MRE 401. The relevance of the evidence dep ends to varying degrees on the similarity between a defendant’s prior b ad acts and current offense. See

Id. at 395-396 & n 13. “Different theories of relevance require di fferent degrees of similarity between past acts and the charged offense to warrant admission. ” Mardlin , 487 Mich at 622. For example, “[w]hen other acts are offered to show intent, log ical relevance dictates only that the charged crime and the proffered other acts ‘are of the same general category.’ ” People v

VanderVliet , 444 Mich 52, 79-80; 508 NW2d 114 (1993), amended 445 Mich 120 5 (1994). In other words, “mere similarity” between the acts will suffice wh en the other-acts evidence is
offered to establish an actor’s intent. Sabin (After Remand) , 463 Mich at 64 (ci tation omitted).-4- In this case, before trial, the prosecutor filed a written not ice of intent seeking to introduce into evidence numerous p ast drug-related offenses com mitted by defendant. The prosecutor detailed a lengthy cr iminal history by defendant inc luding more than 10 arrests for drug-related offenses over a span of nearly 25 years, including the fact that defendant was currently on parole for a drug-related offense. The prosecutor maintained that these charges
were relevant to demonstrate d efendant’s “motive, opportunity, intent, preparation, scheme, plan or system, knowledge, or absen ce of mistake or accident.” 1 In response, defendant filed an objection to the prosecutor’s pr oposed MRE 404(b) evidence and filed a motion in limine to exclude other-acts evidence. Defendant asserted that the prose cutor had taken a “shotgun approach” in his attempt to admit evidence of defendant’s crimi nal history by failing to sufficiently distinguish between his various offenses or to est ablish relevant, individualized grounds upon which to admit each piece of other-acts evidence.

On the first day of trial, the trial court heard arguments on the prosecutor’s efforts to
introduce other-acts evidence unde r MRE 404(b). Most relevant to this appeal, the trial court granted the prosecutor’s request to admit evidence relating to defendant’s arrest in 2009 for possession with intent to deliver cocaine and operating a drug house. In arguing for the admission of this evidence in particular, the prosecutor explai ned that in 2009 defendant was found, at his residence, with cocaine packaged in small baggies in a quantity to indicate an intent to distribute. In the home, police also found cash, a scale, a dditional baggies, and a razor with cocaine residue on it. Compared to the present case, the prose cutor emphasized similarities insofar as in both cases the substance was cocaine in a quantit y and packaging to indicate an intent to distribute. Given these similarities, the prosecutor argued that the 2009 incident was relevant to establishing defendant’s intent, knowledge that the substance was cocaine, absence of mistake, and plan or scheme. The prosecutor also attempted to offer evidence of a 2005 incident
in which defendant was found with five crack rocks and a crack pipe, as well as evidence that, more generally, defendant had a l engthy history of drug arrests which the prosecutor asserted
were relevant to establishi ng defendant’s intent and knowledge.

The trial court weeded through the prosecutor’s various pieces of proposed evidence and, as noted, admitted only the other-acts evidence related to the 2009 incident. The trial court forbade mention of defendant’s parole status, and the trial court excluded evidence of the 2005
incident based on the conclusion that the presence of the crack pipe indicated the possibility of personal consumption rather than a plan for distribution and th us this evidence amounted to

1 Defendant contends that this laundry list recitation of proper purposes does not establish the admissibility of other-acts evidence. We agree that the prosec utor’s written notice of intent to
offer other-acts evidence contained a rather mechanical recitat ion of nearly every proper purpose listed in MRE 404(b). Nonetheless, during oral argument before the trial court relating to the admission of the evidence, the prosecutor plainly went beyond a mechanical recitation and detailed specifically the reasons why the prosecutor believed t he evidence to be relevant to defendant’s knowledge, intent, absence of mistake, and plan or scheme. As discussed infra

, despite the rote repetition of p roper purposes in the written n otice, we are satisfied that the prosecutor met his burden of est ablishing the evidence’s releva nce to a proper purpose.-5- impermissible propensity eviden ce. The trial court also preven ted the prosecutor from mentioning defendant’s various possession offenses in its case- in-chief. Ultimately, in admitting evidence relating to the 2009 incident, the trial court analyze d the evidence within the MRE 404(b) framework and reasoned that the 2009 incident was releva nt to show an intent to
distribute and that there was a plan or scheme for separately p ackaging cocaine.

On appeal, considering the evidence in question and the trial court’s analysis of its relevance, we conclude that the trial court did not abuse its d iscretion in permitting the prosecutor’s use of other-acts evidence under MRE 404(b). Firs t, the trial court appropriately recognized that the prosecutor id entified a proper purpose for the admission of the evidence, specifically that defendant’s 2009 arrest was relevant to show that defendant knowingly possessed the cocaine, that he intended to deliver it, and that he had a plan or scheme. Second, the trial court did not abuse its discretion in concluding that the evidence was material because, by pleading not guilty, defendant placed all elements of the of fense “at issue,” including the question of his intent to distribute and his knowledge of the s ubstance. Crawford , 458 Mich at 389. See also MCL 333.7401(2)(A)(iv).

Third, given the similarities b etween the current offense and defendant’s conduct relating to his 2009 arrest, in particular his possession of numerous in dividual baggies containing small portions of cocaine in a quantity suggestive of an intent to di stribute, the two offenses were within the same “general category.” That is, both offenses inv olved possession of cocaine and circumstances indicative of an intent to distribute. See gener ally Wolfe , 440 Mich at 524-525 (recognizing intent may be inferred from the quantity of narcot ics and the manner of packaging).
Because defendant’s conduct in both cases fell within the same “general category, ” the trial court did not abuse its discretion in concluding that the 2009 incide nt was sufficiently similar to be logically relevant to the issue of defendant’s intent in the pr esent case. 2 VanderVliet , 444 Mich at 79-80; Sabin (After Remand) , 463 Mich at 64.

Further, the trial court did not abuse its discretion under MR E 403 by concluding that the probative value of the evidence relating to defendant’s 2009 arrest was not substantially outweighed by the danger of unfair prejudice or confusion of th e issues. All relevant evidence is

2 We note that, in addition to the issue of intent, the trial co urt concluded that the other-acts evidence was sufficiently similar to have relevance to whether defendant was engaged in a common plan or scheme. Such a theory of relevance requires a h igher degree of similarity, specifically a “concurrence of co mmon features” such that the a cts “are naturally explained as manifestations of a general plan.” People v Hine , 467 Mich 242, 251; 650 NW2d 659 (2002). Even if the 2009 incident was not sufficiently similar to have relevance on this basis, the trial
court nonetheless did not abuse its discretion in concluding th at the evidence had relevance to prove something other than bad character because, as we have di scussed, the trial court reasonably concluded that the evi dence had probative value rela ting to the issue of intent. See People v Yost , 278 Mich App 341, 406; 749 NW2d 753 (2008). Thus, despite an y arguable error in finding relevance to the question of a common scheme or plan , the trial court did not abuse its discretion in determining the evid ence was relevant to a proper purpose.-6- prejudicial to some extent, and the possibility of prejudice do es not make the admission of
evidence unfair. People v Murphy (On Remand) , 282 Mich App 571, 582-583; 766 NW2d 303 (2009). “Unfair prejudice exists when there is a tendency that evidence with little probative value will be given too much weight by the jury.” People v McGhee , 268 Mich App 600, 613- 614; 709 NW2d 595 (2005). “This unfair prejudice refers to the tendency of the proposed evidence to adversely affect t he objecting party’s position by injecting considerations extraneous to the merits of the lawsuit, e .g., the jury’s bias, sympathy, anger, or shock.” Id. (quotation marks and citation omitted). Incomparison, confusion of the i ssues generally occurs when “the introduction of the evidence would have a tendency to divert th e trier of fact’s attention from the truly significant issues in the case.” 1 Robinson & Longhofer, Michigan Court Rules Practice, Evidence (3d ed), § 403.4.

In this case, where the trial court determined the evidence to be probative on the issue of
intent and where there is no indi cation that the evidence injec ted extraneous considerations into trial, that it diverted the jury’ s attention, or that it was gi ven undue weight, we cannot see that the trial court abused its discretion in determining that the evide nce’s probative value was not substantially outweighed by the risk of unfair prejudice or con fusion. Moreover, any potential for prejudice or confusion was m itigated by the trial court’s c autionary instruction to the jury: that they could “not convict the defendant . . . because [they] think he’s guilty of other bad
conduct.” See Orr , 275 Mich App at 593. Ultimately, determinations under MRE 40 3 are best left to the trial court, VanderVliet , 444 Mich at 81, and, contrary t o defendant’s claims of unfair prejudice and jury confusion, we find no basis for concluding t hat the trial court abused its discretion in admitting the 2009 evidence.

Finally, defendant also argues that Sergeant Mike Brown’s tes timony, in which Brown indicated that the surveillance footage showed the baggie falli ng from defendant’s person, invaded the province of the jury. Alternatively, defendant ass erts that defense counsel rendered ineffective assistance by failing to object to Brown’s testimon y in this regard.

Because defendant did not object to Brown’s testimony at trial , the issue is unpreserved. MRE 103(a)(1); People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001). We review unpreserved claims of evidentiary error for plain error affecti ng the defendant’s substantial rights. People v Benton , 294 Mich App 191, 202; 817 NW2d 599 (2011).

A witness who is not testifying as an expert may offer an opin ion if the opinion is “(a) rationally based on the perception of the witness and (b) helpf ul to a clear understanding of the witness’ testimony or the determination of a fact in issue.” M RE 701. In a criminal case, a witness may not, however, provi de an opinion on the guilt or in nocence of the defendant. People v Heft , 299 Mich App 69, 81; 829 NW2d 266 (2012). Further, a witness may not give an opinion on a matter when the jury is equally capable of reaching its ow n conclusion on the issue because such an opinion invades the province of the jury. People v Drossart , 99 Mich App 66, 79-80; 297 NW2d 863 (1980). For example, typically, a lay witness who has viewed a video may not identify a defendant as the individual depicted in the video or photograph when the jury is equally capable of reaching its ow n conclusions regarding the i mages shown. See People v Fomby , 300 Mich App 46, 52-53; 831 NW2d 887 (2013).-7- In this case, Brown testified that, after he spoke with defend ant, he viewed the surveillance footage of the incident. In particular, based on the footage, Brown testified that the floor in the area of the casino in question appeared “clear” an d that as defendant “walked past it . . . appeared to [Brown] as t hough a bag dropped out from eit her his pocket or somewhere on his person and hit the floor, and then was retrieved by the sec urity personnel.” Defendant argues on appeal that this testimony impermissibly invaded the provinc e of the jury because the jury was equally as capable as Brown of determining what the surveil lance footage showed.

While we generally agree that it would be improper for Brown t o invade the province of the jury by opining on the contents of the video, in context it is clear that Brown offered his testimony, not to establish the contents of the video or as an opinion on defendant’s guilt, but to describe the process of his inve stigation. That is, the fact that evidence may not be used for one purpose does not render it inadmissible for other purposes, People v Petri , 279 Mich App 407, 415; 760 NW2d 882 (2008), and generally, police officers may ex plain the steps of their investigation from their personal perceptions, Heft , 299 Mich App at 83. Taken in context, it appears clear that Brown’s testimony was offered to explain the steps of his investigation, including his efforts to obtain a copy of the surveillance foot age and his interview with defendant based on having viewed the footag e. Specifically, Brown testif ied that, after he arrived at the casino and talked with Henrickson, he spoke with defendant, who denied possession of the
cocaine. Brown testified that he then met with security guards in the surveillance room, at which time he viewed the surveillance footage. In his testimony, Bro wn described what the footage purportedly showed and he confirmed that the footage shown to h im at the casino was “essentially the same footage” shown to the jury at trial. Bro wn testified that, after viewing the footage, he took steps to secure a copy of the footage by reque sting that the casino have a copy made. According to Brown’s testimony, after viewing the footag e, he spoke with defendant a second time to again confront def endant about the cocaine based on what the video depicted. Accordingly, in context, Brown’s testimony regarding what he saw on the surveillance footage was part of his explanation of t he steps of his investigation, and not an improper commentary on defendant’s guilt or innocence. Cf. id. Because such testimony was “helpful to a clear understanding of” Brown’s tes timony, the testimony was not impr oper lay opinion testimony, see MRE 701, and defendant has not show n plain error affecting his substantial rights.

Moreover, under a plain error standard, even assuming some err or in the admission of Brown’s testimony, reversal is not required because defendant h as not made the requisite showing of prejudice. The jury had ample opportunity to view t he video and assess its contents, and they were in fact told they could reject a witness’s testim ony and that police officers should be judged by the same standard a s any other witness. Moreover, defendant does not dispute that he was at the casino or walked by the area in question. Furthe rmore, Henrickson personally
observed defendant in the casino and he recounted at trial how he observed the baggie on the floor after defendant walked past the area in question. In sho rt, there is ample evidence that defendant dropped the bag of cocaine and Brown’s testimony, eve n assuming it was improper, did not affect the outcome of the proceedings. Consequently, d efendant has not shown plain error affecting his substantial rights and he is not entitled t o relief on the basis of Brown’s testimony. See People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

We also reject defendant’s alte rnative argument that defense c ounsel was ineffective for failing to object to Brown’s testimony. Any objection to Brown ’s testimony regarding what he-8- saw on the surveillance footage, which occurred while he was ex plaining the steps of his investigation, would have been futile because, as noted, a poli ce officer may explain the steps of his investigation. Heft , 299 Mich App at 83. Defense counsel was not ineffective for failing to make a futile objection. People v Fike , 228 Mich App 178, 182; 577 NW2d 903 (1998). Moreover, as discussed, aside from Brown’s testimony, there was ample evidence, including the video and Henrickson’s testimony, supporting the conclusion tha t defendant dropped the baggie in question. In these circumst ances, defendant has not shown t hat, but for counsel’s failure to object, there was a reasonable probability of a different outco me and thus defendant has not shown he was deprived of the effective assistance of counsel. See id. at 181.

Affirmed.

/s/ Michael J. Kelly /s/ William B. Murphy
/s/ Joel P. Hoekstra