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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 7, 2015

V No. 318237
Jackson Circuit Court BRIAN DAVID KANE, LC No. 11-004710-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

.

Following a jury trial, defenda nt was convicted of possession of at least 450 grams but less than 1,000 grams of oxycodone, MCL 333.7401(2)(a)( ii ); possession of at least 50 but less than 450 grams of morphine, MCL 333.7401(2)(a)( iii ); possession of at least 50 but less than 450 grams of methadone, MCL 333.7401(2)(a)( iii ); possession of less than 50 grams of hydromorphone, MCL 333.7401(2)(a)( iv ); and breaking and enteri ng a store with intent to commit a larceny, MCL 750.110(1). The trial court imposed conc urrent sentences of imprisonment of 40 to 60 years for the oxycodone conviction, 20 to 40 years each for the morphine and methadone convictions, 5 to 8 years for the hydrom orphone conviction, and 6 to 18 years for the breaking-and-en tering conviction. The court s entenced defendant for the drug offenses as a second or subsequent offender, MCL 333.7413(2), a nd for the breaking-andentering offense as an habitual offender fourth, MCL 769.12. D efendant appeal as of right. We
affirm.

This case arose when a pharmacy was broken into after business hours in September 2010. The prosecuting attorney’s theory of the case was that d efendant unsuccessfully tried to pry the door open, then broke a window to gain entry, pried ope n the cabinet that housed the narcotics, and took many bottles of pills from it. Defense c ounsel conceded that defendant broke into the pharmacy intending to commit a larceny, but sugg ested that the prosecution would not be able to prove that defendant knowingly took pills of the kinds, or in the quantities, charged. The subject pharmacy’s supervisor of operations testi fied that the kind and quantities of drugs missing after the break-in were determined by comparin g what was left in the narcotics
cabinet after the break-in with inventory records indicating wh at was there before it.-2- I. EXTRANEOUS INFLUENCES

At the start of jury selection, the trial court asked the pros pective jurors a bout exposure to media accounts of the events underlying this trial, and apparen tly none disclosed any such exposure. After 13 jurors were seated and sworn, trial proceed ed through opening statements and two witnesses before proceedings were adjourned that day. On the second day of trial, after two more witnesses testified, the court announced a lunch reces s, then admonished the jurors to avoid any media coverage concerning the trial, explaining, in p art, that improper exposure to
media influences could cause a mistrial.

Then, before trial resumed, a court officer informed the court that one of the jurors had admitted reading a media account of the subject of the trial th e prior night. After eliciting from the juror in question that she had indeed read of the case on t he Internet, but also that she did not say anything about it to the oth er jurors, the court thanked th e juror for her candor and excused her. Following defense counsel’s request that the court “make the same inquiry of all of the others. . . . [J]ust to ask them if they’ve read anything,” t he court had the jury brought in and
stated: Ladies and gentlemen, we . . . are missing one juror because on e juror did exactly what I [told] ‘em not to do—not to read the newspaper—or about two different times for you. And if somebody else does it, we’re going to ca use a mistrial and this case is going to be very expensive for the State and courtto have to do again. So I’m going to ask you to do a couple of things between . . . now and when the rest of the case concludes. Number one, don’t get on the compu ter, don’t get on M-Live, don’t look at the [local newspaper].

* * *

Does anybody have . . . any questions about that at all? Did a ny of the other rest of you read the article? All right. And I’m not seeing any af firmative indication from the jury.

At issue is whether the court erred in asking the remaining ju rors collectively about exposure to the article in question, as opposed to asking them individually about whether they had “read anything” as defense counsel requested. A trial cour t’s general conduct of trial is
reviewed for an abuse of discretion. See People v Ramano , 181 Mich App 204, 220; 448 NW2d 795 (1989). This includes the court’s decisions relating to ju ry selection. See, generally, People v Tyburski , 445 Mich 606; 518 NW2d 441 (1994).

Appellate counsel argues that t he trial court effectively “for eclosed any real probability of obtaining a true response from t he jurors” for having emphasize d that any such irregularity would result in a mistrial at great expense to the state. We d ecline to share in counsel’s speculation that the jurors treated the court’s concerns over the costs of a mistrial as overriding-3- their duty to respond honestly to the court’s inquiry. 1 Nor do we have any basis upon which to presume that any of the remaini ng jurors had any experience of reading about the case to hide in the first instance. Nor will we presume that if a juror did im properly read of the case in the media and failed to come forward when admonished to do so, the juror then went on to disregard the court’s instructions at the close of proofs to “return a tr ue a[nd] just verdict based only on the evidence and my instruction on the law,” to “only consider the evidence that has been properly admitted in this case,” and to “not use any personal knowledge you may have about a place, person, or event.”

“An abuse of discretion occurs when the court chooses an outco me that falls outside the range of reasonable and principled outcomes.” People v Unger , 278 Mich App 210, 259; 749 NW2d 272 (2008). In this case, t he trial court’s decision was well within the range of principled outcomes when the court promoted judicial economy by electing t o ask the remaining jurors collectively, instead of indivi dually, if any had run afoul of the court’s instructions to refrain from reading anything about the case.

II. INSTRUCTION ON AIDING AND ABETTING

In response to a request by the prosecuting attorney, the tria l court provided the jury an instruction on aiding and abetting as an alternative basis for finding defendant guilty. 2 Appellate counsel argues that the trial court erred in this regard. For the reasons set forth below, we agree,
but conclude that the error was harmless.

A criminal defendant has a right to have his or her case decid ed by a properly instructed jury. See People v Rodriguez , 463 Mich 466, 472; 620 NW2d 13 (2000); MCL 768.29. An instruction should not be given if it is without evidentiary su pport. People v Johnson , 171 Mich App 801, 804; 430 NW2d 828 (1988). Jury instructions that invo lve questions of law are reviewed de novo, but a trial court’s determination whether an instruction is applicable to the
facts of the case is reviewed for an abuse of discretion. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006).

In this case, there was no evidence that a second person was i nvolved in the incident in question, and no such theory was even mentioned until the prose cuting attorney introduced it in closing argument. In light of the complete lack of evidentiary support for any such theory, the

1 Counsel did not ask the court to say something to mitigate anyinhibitions that may have resulted from the court’s comments about the expense of a mistr ial.

2 Appellate counsel argues that defense counsel was ineffective for failing to object to the instruction. However, our review of the record brought to ligh t that counsel objected to the prosecuting attorney’s closing ar gument introducing the theory that someone other than defendant may have been involved in the criminal conduct at issue, then reiterated that objection when invited to put objections on the record after the jury received its final instructions. Because defense counsel adequately preserved this issue by objection onthe record, appellate counsel’s argument that counsel was ineffective for failure to do so is i napt and merits no consideration.-4- instruction on aiding and abetting was erroneous. The prosecut ion on appeal eschews any attempt to rehabilitate the trial court’s decision to provide that instruction, thus effectively confessing error, but instead argues only that the error was ha rmless. “[A] preserved, nonconstitutional error is not a ground for reversal unless ‘af ter an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome
determinative.” People v Lukity , 460 Mich 484, 495-496; 596 NW2d 607 (1999), quoting
MCL 769.26. The defendant bears t he burden of showing that suc h a miscarriage of justice took place. Id . at 493-494.

Defendant at trial conceded his responsibility for breaking in to the pharmacy with the intent to commit a larceny. What was left at issue was whether the prosecution could produce sufficiently reliable documentation or other evidence to satisf y the jurors beyond a reasonable doubt that defendant in fact possessed the pharmaceuticals in t he kinds and quantities charged. The jurors’ task, then, was to assess the veracity of the witne sses who spoke to the kind and quantities of drugs stored in the subject cabinet at the time i n question, along with the documentation the witnesses produced. Imagining that defendant helped another in possessing those substances would not have helped the jurors’ assessment o f that evidence. The gratuitous instruction on aiding and abetting was thus merely that; it nei ther helped the pr osecution obtain a conviction, nor hurt defendant’s a ttempt to defend the charges.

Because the error that appellate counsel exposes with this iss ue was not outcomedeterminative, rever sal is not warranted.

III. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE

Appellate counsel argues that the prosecution failed to presen t sufficient evidence to support the drug-possession convic tions and alternatively argue s that the verdict in those regards was contrary to the great weight of the evidence. Whether the prosecution presented sufficient evidence to support a verdict of guilty is a question of law, c alling for review de novo. People v

Herndon , 246 Mich App 371, 415; 633 NW2d 376 (2001). A trial court’s decision on a motion calling for a new trial on the ground that the verdict was agai nst the great weight of the evidence
is reviewed for an abuse of discretion. See People v Lemmon , 456 Mich 625, 648 n 27; 576 NW2d 129 (1998). However, because d efendant’s great-weight arg ument is unpreserved, review is for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

A. SUFFICIENCY

Appellate counsel argues that the evidence was insufficient to show that defendant possessed the drugs in question, or, alternatively, that he kne w what drugs he possessed, or in what quantities. When reviewing the sufficiency of evidence in a criminal case, a reviewing court must view the evidence of record in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that eac h element of the crime was proved beyond a reasonable doubt. Herndon , 246 Mich App at 415.-5- 1. POSSESSION

Not in dispute is that none of the medications deemed to have gone missing as a consequence of the break-in wa s ever recovered—on defendant’s p erson or otherwise. However, also not in dispute is that defendant committed the breaking an d entering. Further, defendant’s position on appeal that the evidence did not support an instruc tion on aiding and abetting, which we addressed in Part II, supra , necessarily constitutes a concession that no other person was
involved in the after-hou rs break-in of the pharmacy.

“Circumstantial evidence and r easonable inferences drawn there from may be sufficient to prove the elements of a crime.” People v Jolly , 442 Mich 458, 466; 502 NW2d 177 (1993). In this case, the evidence that the narcotics cabinet had been bro ken into, and that the pharmacy’s inventory of pills containing the controlled substances at issu e was substantially reduced, constituted good circumstantial evidence that defendant took po ssession of those substances.

2. KNOWLEDGE OF KIND

“[B]ecause of the difficulty of proving an actor’s state of mi nd, minimal circumstantial
evidence is sufficient.” People v Fetterley , 229 Mich App 511, 518; 583 NW2d 199 (1998). Appellate counsel argues that the evidence that defendant spent perhaps no more than two minutes inside the pharmacy militated against the conclusion th at the perpetrator had knowledge of what was being possessed.

The evidence that defendant broke into the pharmacy, then also , by inference, its narcotics cabinet in short order, militated against concluding that upon prying that cabinet open defendant became indifferent to what was inside, or exercised n o selectivity about what to take from it. According to the testimony, the medications were plai nly labeled for identification. The requisite knowledge was a dequately established.

3. QUANTITIES

Appellate counsel emphasizes that the pharmacy’s documentation included differing figures for a certain drug on a certain date and asserts that t he pharmacy’s supervisor of operations “preferred the explanation that [his pharmacy] made false reports to the DEA, as opposed to the possibility that hi s ‘exhibit’ providing the wei ghts of the missing drugs could be in error.” However, review of the transcripts shows that the s upervisor acknowledged only an inconsistency, which he attributed to error in the amount repor ted to the DEA; he did not attribute it to any deliberately false reporting. Further, tha t and other minor inconsistencies in the pharmacy’s recordkeeping were not so severe as to strip the supervisor’s calculations of evidentiary value.

Appellate counsel points out that the testimony indicated that some pill bottles were
found on the floor and that the r ecord includes no indication w hether they were included with the
numbers calculated to have remained on the shelf or with the nu mbers attributed to defendant’s possession. However, the lack of further evidentiary developme nt of this particular point at trial-6- did not invalidate the testimony and documentation concerning t he extent to which inventories of the medications in question were reduced as the result of the b reak-in.

Appellate counsel further points out that the testimony indica ted that the scale the pharmacy’s supervisor of operations used to calculate the weigh ts of the pills in question was accurate to only within plus or m inus 10 percent. However, if one were to adjust all of the expert’s calculations downward by 10 percent, this would noneth eless leave quantities of each of the four kinds of drugs at issue within the range set forth by the statutes under which defendant
was convicted. 3

B. GREAT WEIGHT OF THE EVIDENCE

“[T]he hurdle a judge must clear to overrule a jury is unquest ionably among the highest in our law. It is to be approach ed by the court with great tre pidation and reserve, with all presumptions running against invocation.” Lemmon , 456 Mich at 639 (quotation marks and citation omitted). “A trial judge does not sit as the thirteenth juror in ruling on motions for a new trial and may grant a new trial only if the evidence preponderates he avily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand .” Id . at 627. A trial court might disturb a jury verdict where testimony upon which the jury depe nded was “patently incredible or defies physical realities,” or w here “the witness’ testimony ha s been seriously impeached and the case marked by uncertainties and discrepancies.” Id . at 643-644 (quotation marks and citations omitted).

In arguing “great weight” as an alternative to sufficiency, ap pellate counsel merely incorporates or reiterates the sufficiency arguments. The sugg estion, then, is that if the documentary and other evidence, viewed in the light most favora ble to the prosecution, was sufficient to prove that defenda nt knowingly possessed the kind s and quantities of drugs for which he was charged and convicted, some of the evidence upon w hich the jury thus had to rely was nonetheless “patently incredi ble,” “defie[d] physical reali ties,” or had been “seriously impeached and the case marked by uncertainties and discrepancie s.” Id . (quotation marks and citations omitted). Because appellate counsel has not exposed any such extreme problems, this alternative argument must fail.

IV. DOUBLE JEOPARDY

The Double Jeopardy Clauses of the federal and state constitut ions prohibit a criminal defendant from being placed twice in jeopardy for a single offe nse. US Const, Ams V & XIV;

3 To the extent that appellate counsel suggests that defendant’s hurried course of contact left him without knowledge of the quantitie s of the various drugs he end ed up possessing, such argument in inapt, because “a defendant need not know the quantity of na rcotics to be found guilty of possession of a controlled substance under MCL 333.7401. . . .” People v Quinn , 440 Mich 178, 189; 487 NW2d 194 (1992), quoted with approval in People v Mass , 464 Mich 615, 626; 628 NW2d 540 (2001).-7- Const 1963, art 1, § 15. Appellate counsel argues that the dec ision to charge defendant separately for possession of each of the four drugs at issue, i nstead of just once for an aggregated quantity of such contraband, viol ated his right against double jeopardy. This Court has reached this issue, and decided it squarely in accord with how defendan t was prosecuted in this case. People v Green , 196 Mich App 593, 595; 493 NW2d 478 (1992). In Green , this Court concluded that the pertinent statutory language indicated a leg islative determination that criminal liability for drug possession shou ld “turn on the considerationof two separate factors,” the amount and the kind of controlled substance possessed. Id . at 595-596. No error has been
shown.

V. SENTENCING

Appellate counsel argues that defendant’s sentence for his mos t serious conviction, 40 to 60 years’ imprisonment for the violation of MCL 333.7401(2)(a)( ii ), violates our state
constitution’s ban on “cruel or unusual punishment.” See Const1963, art 1, § 16 . Constitutional issues present questions of law, calling for review de novo. People v Conat , 238 Mich App 134, 144; 605 NW2d 49 (1999).

The ordinary penalty for a violation of MCL 333.7401(2)(a)( ii ) is “imprisonment for not more than 30 years or a fine of not more than $500,000.00, or b oth,” but repeat offenders are subject to the doubling of either facet under MCL 333.7413(2). Defendant’s 60-year maximum
sentence thus reflec ts those statutes.

Appellate counsel protests that, given that defendant was 46 y ears old at the time of sentencing, his 40-year minimum sentence effectively constitute s a non-parolable life sentence. However, defendant’s minimum sen tence fell within the recommend ed range under the sentencing guidelines and is actually near the low end of that range. “[A] sentence within the guidelines range is presumptivel y proportionate, and a sentence that is proportionate is not cruel or unusual punishment.” People v Powell , 278 Mich App 318, 323; 750 NW2d 607 (2008) (citation omitted). This Court ha s held that “this Court may n ot consider challenges to a sentence based exclusively on proportionality, if the sentence falls within the guidelines.” People v Pratt , 254 Mich App 425, 429-430; 656 NW2d 866 (2002). Further, an otherwise valid prison sentence is not rendered invalid if the minimum term is so lengthy as effectively to preclude the possibility that the defendant will live to see parole eligibility. See, generally, People v Merriweather , 447 Mich 799, 808-809; 527 NW2d 460 (1994). For these reason s, appellate counsel fails to show that defendant’s sentence runs afoul of our state’s constitutional prohibition against crue l or unusual punishment.

Appellate counsel also objects to the assessment of $750 in co urt costs. The original judgment of sentence, dated September 9, 2013, set forth such a n assessment. However, eleven months after issuing the original judgment of sentence, the cou rt issued a new one in which the $750 indicated for court costs was omitted. Because the costs at issue have been deleted from defendant’s sentence, we need n ot reach appellate counsel’s att endant objections. See People v Rutherford , 208 Mich App 198, 204; 526 NW2d 620 (1994).-8- VI. DISCOVERY

Appellate counsel, and also defe ndant in his Standard 4 brief, argue that the prosecution denied defendant a fair trial by failures to cooperate with dis covery requests. Appellate counsel and defendant identify no specific decision of the trial court concerning discovery to take issue with, but instead assert generally that the prosecution was les s than cooperative. At issue are certain pharmacy records, which defense counsel received only a fter trial was in progress. Defense counsel requested a continuance so that he could review the documentation, which the
trial court denied.

“[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to g uilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v Maryland , 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). To prove a Brady violation occurred, a def endant must show that “(1) the prosecution has suppre ssed evidence; (2) that is favor able to the accused; and (3) viewed in its totality, is material.” People v Chenault , 495 Mich 142, 155; 845 NW2d 731 (2014).

The documentation at issue was pharmacy records, no less acces sible to the defense than to the prosecution. 4 The inconsistencies in the documentation produced during tria l, or other indications of a lack of diligence in recordkeeping, that the d efense brought to light were not so severe as to throw seriously into doubt all the pharmacy record s; thus, the evidence cannot reasonably be characterized as more favorable to the defense th an to the prosecution. Whether
other documents further down th e line of the pharmacy’s recordk eeping (e.g., the individual prescriptions and invoices of which defendant makes issue in hi s Standard 4 brief) would have shown similar irregularities, or otherwise provided more or bet ter impeachment opportunities, is speculative. Defense counsel did e ffectively cross-examine the pertinent prose cution witness over irregularities that the lat e-disclosed documentation revea led. Neither appellate counsel nor
defendant offer concrete theorie s on how earlier discovery, or a continuance when requested, would have improved the defense’ s opportunities to make use of the materials involved.

Further, when, at a pretrial hearing, defense counsel complain ed of still needing the documentation purporting to list what was taken as the result o f the break-in, the prosecuting attorney protested that such documents had been provided to def ense counsel’s p redecessors and offered to make his entire file available for copying if defens e counsel so desired. No due process violation has been shown.

4 What became the prosecution’s Exhibit 37, a listing of the amo unts of oxycodone, morphine, methadone, and hydromorphone allegedly missing from the pharmac y after the subject break-in, may seem an exception, because it was prepared at the request o f the prosecution. However, the record does not reveal any willful withholding of such document ation, and there was nothing to stop the defense from asking the pharmacy for identical or simi lar documentation.-9- VII. ASSISTANCE OF COUNSEL

Appellate counsel, and also defendant in his Standard 4 brief, argue that defendant was
convicted and sentenced without t he benefit of effective assist ance of counsel. “In reviewing a defendant’s claim of ineffective assistance of counsel, the rev iewing court is to determine (1) whether counsel’s performance was objectively unreasonable and (2) whether the defendant was prejudiced by counsel’s defective performance.” People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999). Regarding the latter, the defendant must show that the result of the proceeding was fundamentally unfair or unreliable and that but for counsel’s poor performance the result likely would have been different. People v Messenger , 221 Mich App 171, 181; 561 NW2d 463 (1997).

A. PREDECESSOR COUNSEL

At a pretrial motion hearing, defendant’s third of four trial attorneys reported that defendant had discharged him th at morning, and defendant stated that he would thereafter “represent myself or do whatever .” Defendant went on to reques t an evidentiary hearing to develop his assertion that his second defense attorney had pers uaded him to waive his preliminary examination in connection with the drug possession charges in anticipation of a plea agreement that in fact never came through. The court expressed its confidence that the district court followed the procedures for putting the waiver of the pre liminary examination on the record, with defendant’s parti cipation, and opined that waiver of the preliminary examination
had little beari ng on the trial.

Appellate counsel argues that the lack of a preliminary examin ation on the possession charges deprived defendant of the “ability to explore the charg es brought, and the evidence in support of them,” and that unders tanding plaintiff’s “theory of the case would have aided the parties and the Court in resolvi ng discovery issues prior to tr ial.” Beyond these generalities, however, appellate counsel does no t suggest how the defense wou ld have been strengthened had the preliminary examination taken place. In supplementing appe llate counsel regarding this issue in his Standard 4 brief, defendant adds nothing relating to predecessor counsel or the waived preliminary examination. Because neither advocate shows that the lack of a preliminary examination on the drug possession charges rendered the trial f undamentally unfair or unreliable, or that, had defendant had the benefit of the waived preliminar y examination, the result of trial would have been different, the cla im of ineffective assistance of counsel is without merit. See id

.

B. TRIAL COUNSEL

Appellate counsel argues that, if this Court does not accept t he argument that the defense was denied discovery to which it was entitled, this Court shoul d deem defendant’s trial attorney ineffective for having failed to timely subpoena the documents the defense needed. Because we did indeed reject appellate c ounsel’s issues concerning discove ry, in Part VI, supra , we conclude here that, to the extent that the defense was inconvenienced fo r not having received certain documents until trial was underway, the inconvenience resulted from defense counsel’s own failure to exercise due diligence. However, just as we conclud ed in Part VI that appellate
counsel and defendant failed to show that there was a reasonabl e probability that earlier or more-10- detailed discovery, or more time to review documents obtained a fter trial began, would have resulted in a different outcome, we conclude here that any suchdeficiency in trial counsel’s performance did not affect the outc ome of trial or render the p roceedings unfair or unreliable.

Appellate counsel also points out that trial counsel and the t rial court were frequently in conflict. Appellate counsel ass erts that quarreling with the c ourt cannot be considered proper functioning as an attorney, but a lso acknowledges that the tria l court stated at sentencing that its
conflicts with defense counsel d id not influence its sentencing decisions. Appellate counsel does, however, express concern that “there is no way of knowing the effect this had on the jury.” This assertion is, in effect, an acknowledgement that it is mer e speculation to presume that the jury found defendant guilty not because of the evidence, but as a reaction to his attorney’s
conduct.

Appellate counsel also points out that trial counsel conceded defendant’s guilt in connection with the breaking-and-entering charge and asserts th at trial counsel did so without defendant’s agreement. Counsel cites authority for the proposi tion that a “complete” concession of guilt without the defendant’s consent constitutes ineffectiv e assistance of counsel, apparently failing to appreciate that the breaking-and-entering charge was the least grave of the five charges for which defendant was prosecuted, and so the concession of gu ilt was hardly a “complete” one. “Where defense counsel in openin g statement recognizes and cand idly asserts the inevitable, he is often serving his client’s int erest best by bringing out the damaging information and thus lessening the impact.” People v Wise , 134 Mich App 82, 98; 351 NW 2d 255 (1984). “[A]rguing that the defendant is merely guilty of the lesser offense is no t ineffective assistance of counsel.”

Id . Because the evidence in this case tied defendant to the scen e of the crime by matching blood recovered from that location to defendant’s DNA, it is apparent that defense counsel sought to gain credibility with the jury by conceding defendant’s respons ibility for breaking into the pharmacy.

Appellate counsel asserts that defense counsel admitted at sen tencing that he was not prepared to deal with defendant’s susceptibility to enhanced se ntencing on each of his convictions as the result of his being a repeat offender. Howe ver, what defense counsel actually said was, “I am not in any way prepared for anything other than what was reflected in the presentence report and the scori ng. If the Court is going to c onsider anything other than that, then I’m not prepared to defend my client at this time.” The trial court then reminded counsel that he was a defense attorney whose experience left him famili ar with enhanced penalties that repeat offenders such as defenda nt faced, and went on to impose sentences consistent with the applicable statutes and the sentencing guidelines. No deficien cy in trial counsel’s advocacy is apparent from reading the senten cing transcript, and appellate counsel does not suggest how counsel might have performed better.

Defendant, in his Standard 4 brief, argues that defense counse l should have demanded a bill of particulars, see MCR 6.201(A)(3), in order to anticipat e how the prosecution intended to prove its case, or otherwise should have more forcibly demanded disclosure of the information culminating in the prosecution’s exhibit particularizing the ox ycodone, morphine, methadone, and hydromorphone allegedly missing from the pharmacy after the subject break-in. However, at a hearing on pretrial motions that took place one month befo re trial began, the prosecuting attorney spelled out how he inte nded to prove his case. Furthe r, in asserting that the defense-11- might have been stronger if a bill of particulars had been dema nded, defendant suggests that it would have prompted defense couns el to move the trial court in limine to redact exhibit 37 where it showed quantities of pharmaceu ticals allegedly stolen but wi th no weights assigned to them. 5 However, trial counsel may have reasoned that the inclusion in that exhibit of drugs with no weights assigned underscored couns el’s argument that the prosec ution could not reliably prove the missing quantities. Further, had the defense asked to reda ct those items, the prosecuting attorney in response might have endeavored to increase their re levance by eliciting testimony, or bringing documentary evidence, t hat provided at least conservat ive estimates of the attendant weights, thus adding to the quantum of evidence against defenda nt. Defense counsel’s
disinclination to seek redaction of that exhibit may be deemed sound strategy. See People v Henry , 239 Mich App 140, 146; 607 NW2d 767 (1999).

Defendant in his Standard 4 bri ef also asserts that defense co unsel should have demanded that the prosecution “pin the cha rges down to an exact weight a s to the substances,” but cites no authority for the proposition th at where a statute criminalizes possession of a substance within a range of weights the prosecution must prove the amount possesse d with any greater precision than is necessary to establish that it was within that range.

Defendant further argues that d efense counsel’s performance wa s deficient for his not having made issue of the prosecution’s failure to establish the chemical origins of the substances in question. However, the identity of the substances taken was well established by pharmacy records and not seriously in doubt.

Defendant asserts that defense counsel was not prepared to cro ss-examine the pharmacy’s supervisor of operations. However, the record shows that couns el did adequately cross-examine that witness, eliciting from him that the amount of morphine on hand at a given time was reported in one quantity for purposes of the pharmacy’s invento ry and a different amount for the the DEA, causing the witness to opine that the pharmacy thus mi sreported that particular drug to the DEA. Further, because that witness’s strong pharmaceutical credentials were in evidence, counsel acted reasonably in declining to challenge that witness ’s expertise. Moreover, because the amount of each drug reported missing was above the minimum in connection with the statutory requirements underlyi ng the attendant convictions, ar guing over minor variations in the weight of the various pills woul d not have strengthened the def ense.

For these reasons, appellate counsel and defendant have failed to show that defendant
was convicted or sentenced withoutthe benefit of effective ass istance of counsel.

5 The pharmacy’s supervisor of operations explained that his cal culations of missing oxycodone
did not take into account several forms of that drug that went missing after the br eak-in but that had been discontinued by their manufacturers, and of which he h ad no specimens at hand, because he thus lacked a convenient means of determining their weights.-12- VIII. THE PROSECUTION’S EXHIBIT 37

Defendant, in his Standard 4 brief, argues that the trial court erred when it admitted, over a hearsay objection, the prosecution’s Exhibit 37, which was a list, prepared by the pharmacy’s supervisor of operations, of the kinds and quantities of oxycod one, morphine, methadone, and hydromorphone allegedly missing f rom the pharmacy after the sub ject break-in.

Hearsay, meaning testimony regarding a person’s unsworn, out-o f-court assertions offered to prove the truth of the matters asserted, is generall y inadmissible, subject to several exemptions and exceptions as provided by the rules of evidence. MRE 801-805. In this case, the trial court did not elaborate when overruling the hearsay o bjection, but defendant apparently presumes that the trial court d eemed the exhibit admissible und er the exception for business records, MRE 803(6).

Where all the information offered by a chart reflects testimon y properly provided, or documents properly admitted into evidence, the chart is merely derivative of, or cumulative to, that other evidence, offering no information not placed in evid ence by other means. See United States v King , 616 F2d 1034, 1041 (CA 8, 1980) (op ining that “[w]here charts which fairly
summarize the evidence are use d as an aid in understanding the testimony already introduced and the witness who prepared the charts is subject to cross-examina tion with all documents used to prepare the summary, the use of c harts is proper”). The prosec ution’s Exhibit 36, the admission of which is not at issue on app eal, was a listing of medication s taken in the break -in, compiled by comparing quantities remaining in the narcotics cabinet after t he break-in with quantities other, routine, business records indica ted were on hand at the close o f business that day. Exhibit 37 in turn was a selective subset of Exhibit 36, listing only the con trolled substances at issue in this case. Thus, Exhibit 37 added nothing to the body of evidence i ntroduced in other forms, and
served no function other than to facilitate convenient retrieva l of some of the information included within that evidence. Further, the preparer of the ex hibit was subject to crossexamination with documents used to prepare the summary. Admiss ion of the exhibit over a hearsay objection was not erroneous.

IX. DUE PROCESS AND EQUAL PROTECTION

Defendant, in his Standard 4 brief, argues that the prosecutio n’s decision to charge him initially with breaking and entering with intent to commit larc eny, then months later to add the four possession charges, violate d his constitutional rights to due process and equal protection. Both of those constitutional gua rantees protect against irratio nal or arbitrary governmental
action. See Bevan v Brandon Twp , 438 Mich 385, 391; 475 NW2d 37 (1991) (due process); People v Pitts , 222 Mich App 260, 273; 564 NW2d 93 (1997) (equal protection). Defendant-13- argues that the prosecution viol ated his constitutional rights by having acted on the basis of improper motivation. 6

The prosecuting attorney made plain his motives in this regard :

Based on his record, I didn’t f eel that [breaking and entering ] was sufficient to deal with the threat of Mr. Kane being the most p rolific burglar that in my twenty-three year career I have ever seen. Yes, I used anovel approach by charging him with the main narcotic drugs that were stolen in the break-in. . . . I felt in the interest of justice and to protect the public, that we needed a more substantial sentencing scheme in which to insure that Mr. Kane was kept off the streets of our communities because now he has nineteen felony c onvictions, eight high severity felonies, six low se verities, fourteen total brea king and entering or burglary convictions totaling nine separate counties, two separ ate states, he was on parole when he committed this offense, so being on parole wh ere you’re supposed to be on your best behavi or, it doesn’t deter him.

Defendant himself admitted at se ntencing, “I’m a drug addict.”

As defendant acknowledges in his Standard 4 brief, prosecutors have wide discretion in how they file charges. People v Evans , 94 Mich App 4, 6-7; 287 NW2d 608 (1979). Accordingly, judicial review of a prosecutor’s exercise of char ging discretion “is limited to whether an abuse of power occurred, i.e., whether the charging decision was made for reasons that are unconstitutional, illegal, or ultra vires.” Conat , 238 Mich App at 149. This concerns not only the decision regarding what charges to bring, but when to bring them. See People v

Farmer , 193 Mich App 400, 402; 484 NW2d 407 (1992).

For purposes of equal protection, improper selective enforceme nt arises from invidious discrimination taking the form of choosing persons to investiga te or prosecute on the basis of
such attributes themselves unrelat ed to criminal culpability su ch as “‘race, sex, religion or the exercise of a fundamental right.’” People v Maxson , 181 Mich App 133, 135; 449 NW2d 422 (1989), quoting People v Ford , 417 Mich 66, 102; 331 NW2d 878 (1982).

Defendant characterizes the decision to charge him with posses sion of the drugs as an attempt to bypass the Legislature’s provisions for punishment o f break-ins or larcenies. However, prosecutors routinely and properly “choose among vario us applicable criminal statutes

6 Defendant asserts that he waiv ed his preliminary examination o n the added charges in exchange for a plea agreement that would have limited his minimum senten ce to six years’ imprisonment, but that the prosecuting attorney refused to proceed accordingl y. However, defendant does not assert, let alone offer record citations to prove, that any ple a proceeding had progressed to where there was an agreement in place that the prosecuting attorney h ad some duty to respect. Further, a prosecutor generally is notbound by a plea agreement until i t has come to fruition by way of formal approval of the court. People v Heiler , 79 Mich App 714, 721-722; 262 NW2d 890 (1977).-14- in deciding which charges to b ring against a defendant.” Conat , 238 Mich App at 149. “Indeed, the prosecutor is a constitutional officer entrusted with perfo rming the executive function of bringing criminal charges against defendants.” Id

.

Further, prosecutors routinely prosecute a single course of cr iminal activity in connection with all applicable statutes. See People v Goold , 241 Mich App 333, 342-343; 615 NW2d 794 (2000). The breaking-and-enteri ng statute under which defendan t was charged, MCL 750.110(1), is part of the criminal code, and the drug poss ession statute under which he was charged, MCL 333.7401(2)(a), is part of the Public Health C ode. Defendant cites no authority for the proposition that, where a course of criminal conduct violates both the criminal
code and the Public H ealth Code, being ch arged under one of tho se statutory schemes immunizes the person charged from being cha rged under the other as well.

Defendant asserts that the prosecuting attorney added the drug -possession charges out of “pure vindictiveness.” However, the prosecuting attorney’s exp lanation of his charging decision at sentencing suggested not personal vindictiveness, but rather action in furtherance of the legitimate “state purpose” of “maintenance of law and order.” Maxson , 181 Mich App at 135. Further, distinguishing between c hronic recidivists and offende rs with lesser criminal histories does not implicate suspect classifications identified as demand ing strict judicial scrutiny such as race, sex, religion, or the exerc ise of a fundamental right. S ee id

.

For these reasons, defendant has failed to show that what he c haracterizes as improper prosecutorial motivation or pers onal vindictiveness was anythin g other than the proper exercise of the prosecutor’s wide discre tion in deciding what charges to bring and when to bring them.

Affirmed.

/s/ Kathleen Jansen
/s/ Patrick M. Meter /s/ Jane M. Beckering