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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UNPUBLISHED 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: JANSEN, P.J., and METER and BECKERING, JJ. 

PER CURIAM. 

 Following a jury trial, defendant 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 entering a store with intent to 

commit a larceny, MCL 750.110(1). The trial court imposed concurrent 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 hydromorphone conviction, and 6 to 

18 years for the breaking-and-entering conviction. The court sentenced defendant for the drug 

offenses as a second or subsequent offender, MCL 333.7413(2), and for the breaking-andentering offense as an habitual offender fourth, MCL 769.12. Defendant 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 defendant unsuccessfully tried to 

pry the door open, then broke a window to gain entry, pried open the cabinet that housed the 

narcotics, and took many bottles of pills from it. Defense counsel conceded that defendant 

broke into the pharmacy intending to commit a larceny, but suggested 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 testified that the kind and quantities 

of drugs missing after the break-in were determined by comparing what was left in the narcotics 

cabinet after the break-in with inventory records indicating what was there before it. 

 
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I. EXTRANEOUS INFLUENCES 

 At the start of jury selection, the trial court asked the prospective jurors about exposure to 

media accounts of the events underlying this trial, and apparently none disclosed any such 

exposure. After 13 jurors were seated and sworn, trial proceeded 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 recess, then admonished the jurors to 

avoid any media coverage concerning the trial, explaining, in part, 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 the prior night. After eliciting from 

the juror in question that she had indeed read of the case on the Internet, but also that she did not 

say anything about it to the other jurors, the court thanked the 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,” the court had the jury brought in and 

stated: 

Ladies and gentlemen, we . . . are missing one juror because one 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 cause a mistrial and 

this case is going to be very expensive for the State and court to 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 computer, don’t get on 

M-Live, don’t look at the [local newspaper]. 

* * * 

Does anybody have . . . any questions about that at all? Did any of the other rest 

of you read the article? All right. And I’m not seeing any affirmative indication 

from the jury. 

 At issue is whether the court erred in asking the remaining jurors 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 court’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 jury selection. See, generally, People 

v Tyburski, 445 Mich 606; 518 NW2d 441 (1994). 

 Appellate counsel argues that the trial court effectively “foreclosed any real probability of 

obtaining a true response from the jurors” for having emphasized that any such irregularity 

would result in a mistrial at great expense to the state. We decline to share in counsel’s 

speculation that the jurors treated the court’s concerns over the costs of a mistrial as overriding 
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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 remaining jurors had any experience of reading about the case to hide in 

the first instance. Nor will we presume that if a juror did improperly 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 true 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 outcome 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, the trial court’s decision was well within the range of principled 

outcomes when the court promoted judicial economy by electing to ask the remaining jurors 

collectively, instead of individually, 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 trial 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 decided 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 support. People v Johnson, 171 Mich 

App 801, 804; 430 NW2d 828 (1988). Jury instructions that involve 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 involved in the incident in 

question, and no such theory was even mentioned until the prosecuting 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 any inhibitions that may have 

resulted from the court’s comments about the expense of a mistrial. 

2

 Appellate counsel argues that defense counsel was ineffective for failing to object to the 

instruction. However, our review of the record brought to light that counsel objected to the 

prosecuting attorney’s closing argument 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 on the record, appellate counsel’s 

argument that counsel was ineffective for failure to do so is inapt and merits no consideration. 
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instruction on aiding and abetting was erroneous. The prosecution 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 harmless. “[A] preserved, 

nonconstitutional error is not a ground for reversal unless ‘after 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 the burden of showing that such a miscarriage of justice took 

place. Id. at 493-494. 

 Defendant at trial conceded his responsibility for breaking into 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 satisfy the jurors beyond a reasonable 

doubt that defendant in fact possessed the pharmaceuticals in the kinds and quantities charged. 

The jurors’ task, then, was to assess the veracity of the witnesses who spoke to the kind and 

quantities of drugs stored in the subject cabinet at the time in question, along with the 

documentation the witnesses produced. Imagining that defendant helped another in possessing 

those substances would not have helped the jurors’ assessment of that evidence. The gratuitous 

instruction on aiding and abetting was thus merely that; it neither helped the prosecution obtain a 

conviction, nor hurt defendant’s attempt to defend the charges.

 Because the error that appellate counsel exposes with this issue was not outcomedeterminative, reversal is not warranted. 

III. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE 

 Appellate counsel argues that the prosecution failed to present sufficient evidence to 

support the drug-possession convictions and alternatively argues 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, calling 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 against 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 defendant’s great-weight argument 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 knew 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 each element of the crime was proved 

beyond a reasonable doubt. Herndon, 246 Mich App at 415. 

 
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1. POSSESSION 

 Not in dispute is that none of the medications deemed to have gone missing as a 

consequence of the break-in was ever recovered—on defendant’s person or otherwise. However, 

also not in dispute is that defendant committed the breaking and entering. Further, defendant’s 

position on appeal that the evidence did not support an instruction on aiding and abetting, which 

we addressed in Part II, supra, necessarily constitutes a concession that no other person was

involved in the after-hours break-in of the pharmacy. 

 “Circumstantial evidence and reasonable inferences drawn therefrom 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 broken into, and that the pharmacy’s 

inventory of pills containing the controlled substances at issue was substantially reduced, 

constituted good circumstantial evidence that defendant took possession of those substances. 

2. KNOWLEDGE OF KIND 

 “[B]ecause of the difficulty of proving an actor’s state of mind, 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 that 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 no selectivity about what to take 

from it. According to the testimony, the medications were plainly labeled for identification. The 

requisite knowledge was adequately 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 the pharmacy’s supervisor of 

operations “preferred the explanation that [his pharmacy] made false reports to the DEA, as 

opposed to the possibility that his ‘exhibit’ providing the weights of the missing drugs could be 

in error.” However, review of the transcripts shows that the supervisor acknowledged only an 

inconsistency, which he attributed to error in the amount reported to the DEA; he did not 

attribute it to any deliberately false reporting. Further, that 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 record includes no indication whether they were included with the 

numbers calculated to have remained on the shelf or with the numbers attributed to defendant’s 

possession. However, the lack of further evidentiary development of this particular point at trial 
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did not invalidate the testimony and documentation concerning the extent to which inventories of 

the medications in question were reduced as the result of the break-in. 

 Appellate counsel further points out that the testimony indicated that the scale the 

pharmacy’s supervisor of operations used to calculate the weights of the pills in question was 

accurate to only within plus or minus 10 percent. However, if one were to adjust all of the 

expert’s calculations downward by 10 percent, this would nonetheless 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 unquestionably among the highest 

in our law. It is to be approached by the court with great trepidation 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 heavily 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 depended was “patently incredible or 

defies physical realities,” or where “the witness’ testimony has 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, appellate counsel merely 

incorporates or reiterates the sufficiency arguments. The suggestion, then, is that if the 

documentary and other evidence, viewed in the light most favorable to the prosecution, was 

sufficient to prove that defendant knowingly possessed the kinds and quantities of drugs for 

which he was charged and convicted, some of the evidence upon which the jury thus had to rely 

was nonetheless “patently incredible,” “defie[d] physical realities,” or had been “seriously 

impeached and the case marked by uncertainties and discrepancies.” 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 constitutions prohibit a criminal 

defendant from being placed twice in jeopardy for a single offense. 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 quantities of the various drugs he ended up possessing, such argument 

in inapt, because “a defendant need not know the quantity of narcotics 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). 
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Const 1963, art 1, § 15. Appellate counsel argues that the decision to charge defendant 

separately for possession of each of the four drugs at issue, instead of just once for an aggregated 

quantity of such contraband, violated his right against double jeopardy. This Court has reached 

this issue, and decided it squarely in accord with how defendant 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 legislative determination that criminal 

liability for drug possession should “turn on the consideration of 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 most 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 Const 1963, 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 both,” but repeat offenders are 

subject to the doubling of either facet under MCL 333.7413(2). Defendant’s 60-year maximum 

sentence thus reflects those statutes. 

 Appellate counsel protests that, given that defendant was 46 years old at the time of 

sentencing, his 40-year minimum sentence effectively constitutes a non-parolable life sentence. 

However, defendant’s minimum sentence fell within the recommended range under the 

sentencing guidelines and is actually near the low end of that range. “[A] sentence within the 

guidelines range is presumptively 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 has held that “this Court may not 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 reasons, 

appellate counsel fails to show that defendant’s sentence runs afoul of our state’s constitutional 

prohibition against cruel or unusual punishment. 

 Appellate counsel also objects to the assessment of $750 in court costs. The original 

judgment of sentence, dated September 9, 2013, set forth such an assessment. However, eleven 

months after issuing the original judgment of sentence, the court 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 not reach appellate counsel’s attendant objections. See People v 

Rutherford, 208 Mich App 198, 204; 526 NW2d 620 (1994). 

 
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VI. DISCOVERY 

 Appellate counsel, and also defendant in his Standard 4 brief, argue that the prosecution 

denied defendant a fair trial by failures to cooperate with discovery 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 less than cooperative. At issue are 

certain pharmacy records, which defense counsel received only after 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 guilt 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 defendant must show that 

“(1) the prosecution has suppressed evidence; (2) that is favorable 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 accessible to the defense than 

to the prosecution.4

 The inconsistencies in the documentation produced during trial, or other 

indications of a lack of diligence in recordkeeping, that the defense brought to light were not so 

severe as to throw seriously into doubt all the pharmacy records; thus, the evidence cannot 

reasonably be characterized as more favorable to the defense than to the prosecution. Whether 

other documents further down the line of the pharmacy’s recordkeeping (e.g., the individual 

prescriptions and invoices of which defendant makes issue in his Standard 4 brief) would have 

shown similar irregularities, or otherwise provided more or better impeachment opportunities, is 

speculative. Defense counsel did effectively cross-examine the pertinent prosecution witness 

over irregularities that the late-disclosed documentation revealed. Neither appellate counsel nor 

defendant offer concrete theories 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 complained of still needing the 

documentation purporting to list what was taken as the result of the break-in, the prosecuting 

attorney protested that such documents had been provided to defense counsel’s predecessors and 

offered to make his entire file available for copying if defense counsel so desired. No due 

process violation has been shown. 

 

 

4

 What became the prosecution’s Exhibit 37, a listing of the amounts of oxycodone, morphine, 

methadone, and hydromorphone allegedly missing from the pharmacy after the subject break-in, 

may seem an exception, because it was prepared at the request of the prosecution. However, the 

record does not reveal any willful withholding of such documentation, and there was nothing to 

stop the defense from asking the pharmacy for identical or similar documentation. 
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VII. ASSISTANCE OF COUNSEL 

 Appellate counsel, and also defendant in his Standard 4 brief, argue that defendant was 

convicted and sentenced without the benefit of effective assistance of counsel. “In reviewing a 

defendant’s claim of ineffective assistance of counsel, the reviewing 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 that morning, and defendant stated that he would thereafter 

“represent myself or do whatever.” Defendant went on to request an evidentiary hearing to 

develop his assertion that his second defense attorney had persuaded 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 preliminary examination on the 

record, with defendant’s participation, and opined that waiver of the preliminary examination 

had little bearing on the trial. 

 Appellate counsel argues that the lack of a preliminary examination on the possession 

charges deprived defendant of the “ability to explore the charges brought, and the evidence in 

support of them,” and that understanding plaintiff’s “theory of the case would have aided the 

parties and the Court in resolving discovery issues prior to trial.” Beyond these generalities, 

however, appellate counsel does not suggest how the defense would have been strengthened had 

the preliminary examination taken place. In supplementing appellate 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 fundamentally unfair or unreliable, 

or that, had defendant had the benefit of the waived preliminary examination, the result of trial 

would have been different, the claim of ineffective assistance of counsel is without merit. See id. 

B. TRIAL COUNSEL 

 Appellate counsel argues that, if this Court does not accept the argument that the defense 

was denied discovery to which it was entitled, this Court should deem defendant’s trial attorney 

ineffective for having failed to timely subpoena the documents the defense needed. Because we 

did indeed reject appellate counsel’s issues concerning discovery, in Part VI, supra, we conclude 

here that, to the extent that the defense was inconvenienced for 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 concluded in Part VI that appellate 

counsel and defendant failed to show that there was a reasonable probability that earlier or more 
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detailed discovery, or more time to review documents obtained after trial began, would have 

resulted in a different outcome, we conclude here that any such deficiency in trial counsel’s 

performance did not affect the outcome of trial or render the proceedings unfair or unreliable. 

 Appellate counsel also points out that trial counsel and the trial court were frequently in 

conflict. Appellate counsel asserts that quarreling with the court cannot be considered proper 

functioning as an attorney, but also acknowledges that the trial court stated at sentencing that its 

conflicts with defense counsel did 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 mere 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 that trial counsel did so without 

defendant’s agreement. Counsel cites authority for the proposition that a “complete” concession 

of guilt without the defendant’s consent constitutes ineffective 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 guilt was hardly a “complete” one. 

“Where defense counsel in opening statement recognizes and candidly asserts the inevitable, he 

is often serving his client’s interest best by bringing out the damaging information and thus 

lessening the impact.” People v Wise, 134 Mich App 82, 98; 351 NW2d 255 (1984). “[A]rguing 

that the defendant is merely guilty of the lesser offense is not ineffective assistance of counsel.” 

Id. Because the evidence in this case tied defendant to the scene 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 responsibility for breaking into the 

pharmacy. 

 Appellate counsel asserts that defense counsel admitted at sentencing that he was not 

prepared to deal with defendant’s susceptibility to enhanced sentencing on each of his 

convictions as the result of his being a repeat offender. However, 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 scoring. If the Court is going to consider 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 familiar with enhanced penalties that 

repeat offenders such as defendant faced, and went on to impose sentences consistent with the 

applicable statutes and the sentencing guidelines. No deficiency in trial counsel’s advocacy is 

apparent from reading the sentencing transcript, and appellate counsel does not suggest how 

counsel might have performed better. 

 Defendant, in his Standard 4 brief, argues that defense counsel should have demanded a 

bill of particulars, see MCR 6.201(A)(3), in order to anticipate 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 oxycodone, 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 before trial began, the prosecuting 

attorney spelled out how he intended to prove his case. Further, in asserting that the defense 
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might have been stronger if a bill of particulars had been demanded, defendant suggests that it 

would have prompted defense counsel to move the trial court in limine to redact exhibit 37 where 

it showed quantities of pharmaceuticals allegedly stolen but with 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 counsel’s argument that the prosecution could not reliably prove 

the missing quantities. Further, had the defense asked to redact those items, the prosecuting 

attorney in response might have endeavored to increase their relevance by eliciting testimony, or 

bringing documentary evidence, that provided at least conservative estimates of the attendant 

weights, thus adding to the quantum of evidence against defendant. 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 brief also asserts that defense counsel should have demanded 

that the prosecution “pin the charges down to an exact weight as to the substances,” but cites no 

authority for the proposition that where a statute criminalizes possession of a substance within a 

range of weights the prosecution must prove the amount possessed with any greater precision 

than is necessary to establish that it was within that range. 

 Defendant further argues that defense counsel’s performance was 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 cross-examine the pharmacy’s 

supervisor of operations. However, the record shows that counsel 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 inventory and a different amount for the 

the DEA, causing the witness to opine that the pharmacy thus misreported 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 underlying the attendant convictions, arguing over minor variations in the 

weight of the various pills would not have strengthened the defense. 

 For these reasons, appellate counsel and defendant have failed to show that defendant 

was convicted or sentenced without the benefit of effective assistance of counsel. 

 

5

 The pharmacy’s supervisor of operations explained that his calculations of missing oxycodone 

did not take into account several forms of that drug that went missing after the break-in but that 

had been discontinued by their manufacturers, and of which he had no specimens at hand, 

because he thus lacked a convenient means of determining their weights. 
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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 oxycodone, morphine, methadone, and 

hydromorphone allegedly missing from the pharmacy after the subject break-in. 

 Hearsay, meaning testimony regarding a person’s unsworn, out-of-court assertions 

offered to prove the truth of the matters asserted, is generally 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 objection, but defendant apparently 

presumes that the trial court deemed the exhibit admissible under the exception for business 

records, MRE 803(6). 

 Where all the information offered by a chart reflects testimony 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 evidence by other means. See United 

States v King, 616 F2d 1034, 1041 (CA 8, 1980) (opining that “[w]here charts which fairly 

summarize the evidence are used as an aid in understanding the testimony already introduced and 

the witness who prepared the charts is subject to cross-examination with all documents used to 

prepare the summary, the use of charts is proper”). The prosecution’s Exhibit 36, the admission 

of which is not at issue on appeal, was a listing of medications taken in the break-in, compiled by 

comparing quantities remaining in the narcotics cabinet after the break-in with quantities other, 

routine, business records indicated were on hand at the close of business that day. Exhibit 37 in 

turn was a selective subset of Exhibit 36, listing only the controlled substances at issue in this 

case. Thus, Exhibit 37 added nothing to the body of evidence introduced in other forms, and 

served no function other than to facilitate convenient retrieval of some of the information 

included within that evidence. Further, the preparer of the exhibit was subject to crossexamination with documents used to prepare the summary. Admission 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 prosecution’s decision to charge him 

initially with breaking and entering with intent to commit larceny, then months later to add the 

four possession charges, violated his constitutional rights to due process and equal protection. 

Both of those constitutional guarantees protect against irrational 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 
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argues that the prosecution violated 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 feel that [breaking and entering] was 

sufficient to deal with the threat of Mr. Kane being the most prolific burglar that 

in my twenty-three year career I have ever seen. Yes, I used a novel 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 convictions, eight 

high severity felonies, six low severities, fourteen total breaking and entering or 

burglary convictions totaling nine separate counties, two separate states, he was 

on parole when he committed this offense, so being on parole where you’re 

supposed to be on your best behavior, it doesn’t deter him. 

Defendant himself admitted at sentencing, “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 charging 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 enforcement arises from invidious 

discrimination taking the form of choosing persons to investigate or prosecute on the basis of 

such attributes themselves unrelated to criminal culpability such 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 possession of the drugs as an 

attempt to bypass the Legislature’s provisions for punishment of break-ins or larcenies. 

However, prosecutors routinely and properly “choose among various applicable criminal statutes 

 

6

 Defendant asserts that he waived his preliminary examination on the added charges in exchange 

for a plea agreement that would have limited his minimum sentence to six years’ imprisonment, 

but that the prosecuting attorney refused to proceed accordingly. However, defendant does not 

assert, let alone offer record citations to prove, that any plea proceeding had progressed to where 

there was an agreement in place that the prosecuting attorney had some duty to respect. Further, 

a prosecutor generally is not bound by a plea agreement until it 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). 
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in deciding which charges to bring against a defendant.” Conat, 238 Mich App at 149. “Indeed, 

the prosecutor is a constitutional officer entrusted with performing the executive function of 

bringing criminal charges against defendants.” Id. 

 Further, prosecutors routinely prosecute a single course of criminal activity in connection 

with all applicable statutes. See People v Goold, 241 Mich App 333, 342-343; 615 NW2d 794 

(2000). The breaking-and-entering statute under which defendant was charged, 

MCL 750.110(1), is part of the criminal code, and the drug possession statute under which he 

was charged, MCL 333.7401(2)(a), is part of the Public Health Code. Defendant cites no 

authority for the proposition that, where a course of criminal conduct violates both the criminal 

code and the Public Health Code, being charged under one of those statutory schemes immunizes 

the person charged from being charged 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 explanation 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 chronic recidivists and offenders with lesser criminal histories 

does not implicate suspect classifications identified as demanding strict judicial scrutiny such as 

race, sex, religion, or the exercise of a fundamental right. See id. 

 For these reasons, defendant has failed to show that what he characterizes as improper 

prosecutorial motivation or personal vindictiveness was anything other than the proper exercise 

of the prosecutor’s wide discretion in deciding what charges to bring and when to bring them. 

 Affirmed. 

/s/ Kathleen Jansen 

/s/ Patrick M. Meter 

/s/ Jane M. Beckering