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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UNPUBLISHED 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. KELLY, P.J., and MURPHY and HOEKSTRA, JJ. 

PER CURIAM. 

 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 court sentenced defendant as a 

fourth-offense habitual offender, MCL 769.12, to 20 to 240 months’ imprisonment. Defendant 

appeals as of right. Because the prosecutor presented sufficient evidence to support defendant’s 

conviction, the trial court did not abuse its discretion in admitting other-acts evidence, and there 

was no plain error in the admission 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 area, Henrickson saw what he thought 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 tested positive for the presence of 

cocaine. As noted, defendant was convicted of possession with intent to deliver less than 50 

grams of cocaine in violation of MCL 333.7401(2)(a)(iv). Defendant now appeals as of right. 

 On appeal, defendant first argues 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 evidence presented was insufficient to 

establish that he possessed the cocaine discovered on the casino floor. 

 We review a challenge to the sufficiency of the evidence de novo. 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 fact 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 
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favor of the prosecution and we will not interfere with the jury’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 reasonable 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 deliver 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 substance 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 possession of 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 location where drugs are 

discovered does not prove possession; rather, there must be “some 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 those who, under the totality of the 

circumstances, have a “sufficient nexus” to the contraband to indicate constructive possession. 

People v Johnson, 466 Mich 491, 500; 647 NW2d 480 (2002). 

 In this case, although no one actually saw cocaine in defendant’s possession, the evidence 

and reasonable inferences arising therefrom was sufficient to allow 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 direction as defendant. Importantly, the 

area of the casino floor in front of defendant was clear. But, immediately after defendant walked 

past this area, the baggie was on the floor. Although Henrickson 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 recording of the surveillance footage 

of the incident. In the recording, Henrickson can be seen picking up the baggie, which appears 

as a white dot, from the casino floor. The recording also shows 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 reasonable 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 reasonably 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 could 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 evidence should not have been 

admitted because the facts surrounding his 2009 arrest were insufficiently similar to the present 

offense. Given the purportedly dissimilar facts, defendant maintains that there was no proper 

purpose for the evidence’s admission and instead the prosecution impermissibly used the otheracts evidence as propensity evidence. Further, defendant argues that the other-act’s probative 

value was substantially outweighed by the possibility of unfair prejudice and jury confusion. 
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 “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 discretion.” People v Waclawski, 

286 Mich App 634, 669-670; 780 NW2d 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 court’s decision on a close 

evidentiary question ordinarily cannot be an abuse of discretion. People v Sabin (After Remand), 

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

 MRE 404(b) prohibits the admission of evidence of “other crimes, wrongs, or acts to . . . 

prove the character of a person in order to show action in conformity therewith.” MRE 

404(b)(1). See also Crawford, 458 Mich at 383. Although other-acts evidence may not be used 

to demonstrate a person’s character or propensity to commit a crime, it may be admissible for 

other purposes, including, for example, proof of intent or knowledge. MRE 404(b)(1). To 

introduce evidence under MRE 404(b): 

First, the prosecutor must offer the “prior bad acts” evidence under something 

other than a character or propensity theory. Second, “the evidence must be 

relevant under MRE 402 . . . .” Third, the probative value of the evidence must 

not be substantially outweighed by unfair prejudice under MRE 403. Finally, the 

trial court, upon request, may provide a limiting instruction under 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 whether 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 does 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 to 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 that is of consequence to the action.” 

Id. (citation omitted). Whether the evidence also has probative value depends on “whether the 

proffered evidence tends ‘to make the existence of any fact that 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 depends to 

varying degrees on the similarity between a defendant’s prior bad acts and current offense. See 

Id. at 395-396 & n 13. “Different theories of relevance require different 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, logical 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 1205 (1994). In 

other words, “mere similarity” between the acts will suffice when the other-acts evidence is 

offered to establish an actor’s intent. Sabin (After Remand), 463 Mich at 64 (citation omitted). 
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 In this case, before trial, the prosecutor filed a written notice of intent seeking to 

introduce into evidence numerous past drug-related offenses committed by defendant. The 

prosecutor detailed a lengthy criminal history by defendant including 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 defendant’s “motive, opportunity, intent, preparation, scheme, plan 

or system, knowledge, or absence of mistake or accident.”1 In response, defendant filed an 

objection to the prosecutor’s proposed MRE 404(b) evidence and filed a motion in limine to 

exclude other-acts evidence. Defendant asserted that the prosecutor had taken a “shotgun 

approach” in his attempt to admit evidence of defendant’s criminal history by failing to 

sufficiently distinguish between his various offenses or to establish 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 under 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 explained 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, additional baggies, and a razor with 

cocaine residue on it. Compared to the present case, the prosecutor emphasized similarities 

insofar as in both cases the substance was cocaine in a quantity 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 lengthy history of drug arrests which the prosecutor asserted 

were relevant to establishing 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 thus this evidence amounted to 

 

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 Defendant contends that this laundry list recitation of proper purposes does not establish the 

admissibility of other-acts evidence. We agree that the prosecutor’s written notice of intent to 

offer other-acts evidence contained a rather mechanical recitation 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 the evidence to be relevant to 

defendant’s knowledge, intent, absence of mistake, and plan or scheme. As discussed infra, 

despite the rote repetition of proper purposes in the written notice, we are satisfied that the 

prosecutor met his burden of establishing the evidence’s relevance to a proper purpose. 
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impermissible propensity evidence. The trial court also prevented 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 analyzed the evidence within the MRE 

404(b) framework and reasoned that the 2009 incident was relevant to show an intent to 

distribute and that there was a plan or scheme for separately packaging 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 discretion in permitting the 

prosecutor’s use of other-acts evidence under MRE 404(b). First, the trial court appropriately 

recognized that the prosecutor identified 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 offense “at issue,” including the 

question of his intent to distribute and his knowledge of the substance. Crawford, 458 Mich at 

389. See also MCL 333.7401(2)(A)(iv). 

 Third, given the similarities between the current offense and defendant’s conduct relating 

to his 2009 arrest, in particular his possession of numerous individual baggies containing small 

portions of cocaine in a quantity suggestive of an intent to distribute, the two offenses were 

within the same “general category.” That is, both offenses involved possession of cocaine and 

circumstances indicative of an intent to distribute. See generally Wolfe, 440 Mich at 524-525 

(recognizing intent may be inferred from the quantity of narcotics 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 incident was sufficiently similar to be 

logically relevant to the issue of defendant’s intent in the present 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 MRE 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 the issues. All relevant evidence is 

 

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 We note that, in addition to the issue of intent, the trial court 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 higher degree of similarity, 

specifically a “concurrence of common features” such that the acts “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 that the evidence had relevance to 

prove something other than bad character because, as we have discussed, the trial court 

reasonably concluded that the evidence had probative value relating to the issue of intent. See 

People v Yost, 278 Mich App 341, 406; 749 NW2d 753 (2008). Thus, despite any 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 evidence was relevant to a proper purpose. 
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prejudicial to some extent, and the possibility of prejudice does 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 the 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). In comparison, confusion of the issues generally occurs when “the 

introduction of the evidence would have a tendency to divert the 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 indication that the evidence injected extraneous considerations into 

trial, that it diverted the jury’s attention, or that it was given undue weight, we cannot see that the 

trial court abused its discretion in determining that the evidence’s probative value was not 

substantially outweighed by the risk of unfair prejudice or confusion. Moreover, any potential 

for prejudice or confusion was mitigated by the trial court’s cautionary 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 403 are best 

left to the trial court, VanderVliet, 444 Mich at 81, and, contrary to defendant’s claims of unfair

prejudice and jury confusion, we find no basis for concluding that the trial court abused its 

discretion in admitting the 2009 evidence. 

 Finally, defendant also argues that Sergeant Mike Brown’s testimony, in which Brown 

indicated that the surveillance footage showed the baggie falling from defendant’s person, 

invaded the province of the jury. Alternatively, defendant asserts that defense counsel rendered 

ineffective assistance by failing to object to Brown’s testimony 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 affecting 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 opinion if the opinion is “(a) 

rationally based on the perception of the witness and (b) helpful to a clear understanding of the 

witness’ testimony or the determination of a fact in issue.” MRE 701. In a criminal case, a 

witness may not, however, provide an opinion on the guilt or innocence 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 own 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 own conclusions regarding the images shown. See People v 

Fomby, 300 Mich App 46, 52-53; 831 NW2d 887 (2013). 
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 In this case, Brown testified that, after he spoke with defendant, 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” and that as defendant “walked past it 

 . . . appeared to [Brown] as though a bag dropped out from either his pocket or somewhere on 

his person and hit the floor, and then was retrieved by the security personnel.” Defendant argues 

on appeal that this testimony impermissibly invaded the province of the jury because the jury 

was equally as capable as Brown of determining what the surveillance footage showed. 

 While we generally agree that it would be improper for Brown to 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 investigation. 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 explain 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 footage and his interview with defendant 

based on having viewed the footage. Specifically, Brown testified 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, Brown described what the footage 

purportedly showed and he confirmed that the footage shown to him at the casino was 

“essentially the same footage” shown to the jury at trial. Brown testified that, after viewing the 

footage, he took steps to secure a copy of the footage by requesting that the casino have a copy 

made. According to Brown’s testimony, after viewing the footage, he spoke with defendant a 

second time to again confront defendant 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 the 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 testimony, the testimony was not improper lay opinion testimony, see 

MRE 701, and defendant has not shown plain error affecting his substantial rights. 

 Moreover, under a plain error standard, even assuming some error in the admission of 

Brown’s testimony, reversal is not required because defendant has not made the requisite 

showing of prejudice. The jury had ample opportunity to view the video and assess its contents, 

and they were in fact told they could reject a witness’s testimony and that police officers should 

be judged by the same standard as any other witness. Moreover, defendant does not dispute that 

he was at the casino or walked by the area in question. Furthermore, 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 short, there is ample evidence that 

defendant dropped the bag of cocaine and Brown’s testimony, even assuming it was improper, 

did not affect the outcome of the proceedings. Consequently, defendant has not shown plain 

error affecting his substantial rights and he is not entitled to 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 alternative argument that defense counsel was ineffective for 

failing to object to Brown’s testimony. Any objection to Brown’s testimony regarding what he 
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saw on the surveillance footage, which occurred while he was explaining the steps of his 

investigation, would have been futile because, as noted, a police 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 that defendant dropped the baggie 

in question. In these circumstances, defendant has not shown that, but for counsel’s failure to 

object, there was a reasonable probability of a different outcome 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