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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED October 16, 2018

v No. 339216

Delta Circuit Court RAYMOND KEITH DISHNO, LC No. 16

- 009380

- FH

Defendant

- Appellant.

Before: B ECKERING

, P .J., and R IORDAN and C AMERON , JJ.

P ER C URIAM

.

Defendant was convicted of one count of possession with intent to deliver less than 50

grams of cocaine , MCL 333.7401(2)(a)( iv ), and was sentenced as a fourth

- offense habitual offender, MCL 769.12 , to serve 32 months to 20 years in prison. 1 On appeal, he argues (1) the prosecution’s expert on drug slang was not properl y qualified

, and (2) the trial court should have provided an adverse

- inference instruction to the jury because the police interrogation video was unavailable

. We affirm.

I. BACKGROUND

During the summer of 2016, Escanaba Public Safety (“EPS”) officers received

information from Nathan Gartland , a former friend of defendant, that defendant was selling cocaine. Gartland provided the information while enrolled in a local police

- sanctioned substance abuse assistance program. Gartland informed police that defendant drove a “blu e Chevy pickup with a ladder rack, [with] loud exhaust [,] . . . containing a large amount of cash and drugs

, ” and

that defendant stored the coc aine in a green “safety kit box.”

On August 13, 2016, Gartland went to defendant’s house and purchased a half gr am of

cocaine from defendant and apparently used all of the cocaine while at defendant’s house. Later that evening

, Gartland and defendant drove to a grocery store in defendant’s vehicle

. While the men were driving, EPS Officer Kyle Piat t was conductin g traffic patrol and had received

1 Defendant was also convicted of maintaining a drug vehicle, MCL 333.7405(1)(d), and was

sentenced to time served . Defendant does not appeal this conviction.- 2

- information regarding Gartland’s tip. Piatt observed the distinctive features of defendant’s vehicle, pulled behind it to check its plates, and stopped the vehicle after learning that it belonged to defendant. Piatt call ed for backup, and a canine sniff was conducted around

defendant’s truck

. The dog alerted officers to the presen ce of narcotics in the vehicle.

The officers searched defendant’s truck and discovered , among other things, a metal

tobacco can un derneath the driver’s side seat. The can contain ed six individual packages of suspected cocaine

. T he officers also seized from the inside of defendant’s wallet a small “drug ledger” with small amounts, names, and times written on it, plus a large quantity of thre e

- inch by

three

- in ch plastic bags, and about $2,310 in cash. L aboratory results confirmed that the substance was cocaine and weighed approximately fo u r grams . The officers also seized

defendant’s cell phone for forensic analysis.

A fter defendant was in custody, he was taken to an in terview room at the EPS department. The interview room was equipped with an audio and video recording device. The

officers read defendant his Miranda 2 warnings , to which defendant responded that he wanted a lawyer and tha t he did not want to speak to the officers. The police stopped the interview ; however, defendant made several unsolicited statements. The officers testified that defendant stated “something to the effect of, ‘I only buy the cocaine. I buy it as it was a s you found it. I’m a recreational user, and I only sell a little

. ’ ” The statements reportedly made by defendant were automatically erased because the police did not preserve the recording within 14 days of the

interview.

At trial, Detective/Sergean t Anthony LaPlant was qualified as an expert witness in the

field of cell phone forensics and “in the field of drug profiling related to comm unications

associated therewith. ” He testified that his forensic examination of defendant’s cell phone

revealed “[t]ransactional sounding text messages,” which meant “that they ’re talking in drug slang .” According to LaPlant, it is un common for people to communicate using the names of the drugs that they were using or selling; rather, they used slang words . He tes tified about several

text message s found on defendant’s phone

, received and sent during the summer of 2016, which used coded terminology to refer to several controlled substances

, including marijuana, cocaine, and various pills. For instance, defendant us ed terms like “full T” to reference methamphetamine, “orange” to reference Suboxone, and “go

- go” to reference cocaine.

At the conclusion of the prosecution’s case

- in

- chief , defendant called several witness es who suggested defendant regularly kept large amounts of cash on him because he performed home repair work and often received payments in cash. Additionally, the mother of defendant’s

children testified that when she saw defendant in his truck on August 13, 2016, she did not see any drugs or paraphe rnalia and that

, although she knew defendant had occasionally used cocaine,

she n ever saw defendant sell cocaine.

When defendant testified, he denied ever selling cocaine and denied ownership and knowledge of the cocaine found under his car seat . Defen dant theorized that the cocaine could

2 Miranda v Arizona , 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966).- 3

- have belonged to or been planted by Gartland. Moreover, a ccording to defendant, the ledger in

his wallet was something he used to note personal loans and some marijuana sales , and the coded

text messages that LaPlant had testified about were all references to marijuana, not cocaine. Additionally, d efendant denied telling the officers that he used cocaine or sold cocaine, and

testified that he told them he sold only “a little bit of marijuana .”

II. ANALYSIS

A. MRE 702

Defendant claims that the trial court erroneously qualified LaPlant as an expert witness in “drug slang

, ” allow ing LaPlant to interpret defendant’s coded text messages . We disagree.

This Court reviews a t rial court’s “ determination regard ing the qualifi cation of an expert

and the admissibility of expert testimony” for an abuse of discretion. People v Murray , 234 Mich Ap p 46, 52; 593 NW2d 690 (1999). “At its core, an abuse of discretion standard acknowledges that there will be circumstanc es in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.” People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). “When the trial court selects one of these principled outcomes, the tri al court has not abused its discretion . . . . An abuse of discretion occurs, however, when the trial court chooses an outcome falling outside this principled range of

outcomes.” Id

.

D efendant does not challenge the interpretation of drug slang as a recognized discipline; rather, defendant asserts that LaPlant was not qualified to interpret the drug slang used in the text

messages because his experience in this area was too stale

. Testimony from an expert witness is governed by MRE 702, which provides :

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witn ess qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods relia bly to the facts of the case.

“An expert witness may offer an opinion only if he or she has specialized knowledge that will

assist the trier of fact to understand the evidence .” People v Carll , 322 Mich App 690, 699; 915 NW2d 387 (2018). “ [ A ] proposed expert should not be scrutinized by an overly narrow test of qualifications.” People v Whitfield , 425 Mich 116, 123; 388 NW2d 206 (1986) (quotation marks and citation omitted)

. “The determinative inquiry in qualifying an expert is the nature and extent of knowledge and actual experience [

. ] ” Carll , 322 Mich App at 699 (quotation marks and citation omitted). Michigan courts have generally accepted that drug

- related law enforcem ent officers possess specialized knowledge from their training and experience that can assist a lay jury’s understanding of evidence in a controlled substance case. See, e.g., People v Williams (After Remand) , 198 Mich App 537, 542; 499 NW2d 404 (1993) (f inding no error where police- 4

- officer was qualified as an expert witness and explained how innocuous household items can have an alternative use in illicit drug trade).

In this case, LaPlant’s knowledge, experience, and train ing in narcotics linguistics we re properly established. Specifically, from 2005 to 2008, LaPlant served in a specialized drug

enforcement unit where he gained experience managing informants and investigating drug crimes. While working with this unit , LaPlant was personally in charge of more than 200 narcotic investigations, “dealt with people all the time that have talked this way,” received specialized controlled substance training, and participated in about 12 unde rcover controlled drug buys. Additionally, LaPlant testified that during his years with the unit , he purchased narcotics directly from dealers and through informants, using email, text messaging, and face

- to

face contact with suspects. LaPlant characterized the linguistics he observed in his expe r ience as “typical street talk.” Notably, LaPlant’s familiarity and expertise with narcotics linguistics is supported in his statement that “you have to sell that you’re involved in this stuff, so you have to

look and sound like they do,” because suspecte d drug dealers typically will not sell narcotics to

others who do not “re fer to it how they refer to it.”

Prior to his three years with the specialized drug unit , LaPlant served five years working on road patrol from 2000 to 2005 investigat ing close to 100 cases involving controlled

substances

, and he attend ed drug interdiction and awareness training as recently as the year 2012.

LaPlant testified that he routinely attend ed annual l egal updates regarding narcotic trafficking

. Moreover, LaPlant affirmed that as a detective, he continue d to assist other officers with investigating narcotics cases using mobile forensics and surveillance, and that he routinely

review ed cellular phone records relating to controlled substances. Defendant’s contention that

La Plant’s experience with language used in drug transactions was outdated is not supported by the record, which indicates that LaPla nt was continuously involved in narcotics cases to some
extent, and he was fluent in the language used in drug transactions. Therefore , LaPlant’s experience in dealing with narcotics linguistics was both extensive and current.

Considering LaPlant’s testimony regarding his 17

- year career in law enforcement and the

years he spent working with and learning the linguistics associ ated with narcotics sales , he was properly qualified as an expert

, Murray , 234 Mich App at 53 , because his knowledge, experience, and training established that his testimony was “based on sufficient facts” and was the product of reliable principles and methods that were reliably ap plied to the facts of the case as required under MRE 702.

D efendant claims that LaPlant’s testimony was inadmissible because he was addressing communications that were “within common knowledge,” and the jury was just as capa ble of considering the evidence and arriving at its own conclusion. Defendant’s argument is without

merit because LaPlant’s testimony was highly relevant to the case. LaPlant’s specialized knowledge assisted the jury in understanding defendant’s coded te xt messages, i.e., it “serve[d] to give the trier of fact a better understanding of the evidence or assist in determining a fact in

issue. ” Murray , 234 Mich App at 53 (quotation marks and citation omitted); see also MRE 702

. W ithout LaPlant’s testimony, the jury would have been left to interpret terms like “full T” and “orange” without any guidance. Moreover, the testimony established “that defendant intended to sell the drugs and not simply use [ them ] for personal consumption.” People v Ray

, 191 Mich

A

pp 706, 708 ; 479 N W2d 1 (1991)

.- 5

- Finally, contrary to defendant’s claim, MRE 403 would not exclude the admission of LaPlant’s testimony. MRE 403 provides that a trial court may exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” LaPlant’s testimony was highly probative of defendant’s

intent to deliver cocaine because the testimony identified and explained a series of “[t]ransactional sounding text messages,” which helped prove defen dant knowing ly possess ed, and intended to deliver, the cocaine. Moreover, the trial court instructed the jury that LaPlant’s testimony could not “be used to determine whether the defendant committed the crimes charged,” and that it could consider the test imony “only as an aid with respect to the text messages.” The jury presumably followed the court’s instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998).

In sum, the trial court’s determination that LaPlant was qualified to testify as an expert in narcotics linguistics was within the range of reasonable and principled outcomes, Babcock , 469 Mich at 269, because his testimony was based on sufficient facts and was the product of reliable principles that , under MRE 702, were applied reliab ly to the facts of the case. Therefore, the trial court did not abuse its discretion in permitting LaPlant to testify as an expert witness and decode defendant’s text messages

.

B. MCL 763.9

Next, defendant claims that he was entitled to an adverse

- in fere nce instruction under

MCL 763.9 and that he received ineffective assistance of counsel by his trial attorney’s failure to request such an instruction . We disagree.

D efendant failed to preserve this issue because it was not raised in the trial court . See People v Grant , 445 Mich 535, 546; 520 NW2d 123 (1994). Therefore, this Court’s review is for plain error affecting defendant’s substantial rights. People v Aldrich , 246 Mich App 101,

124

- 125; 631 NW2d 67 (2001)

. Further, because he failed to rai se it in either a timely filed motion for a new trial, People v Wilson , 242 Mich App 350, 352; 619 NW2d 413 (2000 ), or a

motion for a Ginther 3 hearing, People v Hurst , 205 Mich App 634, 641; 517 NW2d 858 (1994 ),

our review of defendant’s claim of ineffective assistance of counsel “ is limited to errors apparent

on the record. ” People v Matuszak , 263 Mich App 42, 48; 687 NW 2d 342 (2004).

MCL 763.9 provides :

Any failure to record a statement as required under [MCL 763.8 4 ] or to preserve a recorded statement does not prevent any law enforcement official

3 People v Ginther , 390 Mich 436 ; 212 NW2d 922 (1973).

4 MCL 763.8(2) provides in part that “[a] law enforcement official interrogating an individual in custodial detention regarding the individual’s involvement in the commission of a major felony

shall make a time

- stamped, audi ovisual recording of the entire interrogation. ”- 6

- present during the taking of the statement from testifying in court as to the

circumstances and content of the individual’s statement if the court determines

that the stat ement is otherwise admissible. However, unless the individual objected to having the interrogation recorded and that objection was properly

documented under [MCL 763. 8(3) 5 ] , the jury shall be instructed that it is the law

of this state to record statement s of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement

. [Emphasis added

. ]

MCL 763.7 gives the f ollowing relevant definitions:

(a) “Custodial detention” means an individual’s being in a place of

detention because a law enforcement official has told the individual that he or she is under arrest or because the individual, under the totality of the cir cumstances, reasonably could believe that he or she is under a law enforcement official’s

control and is not free to leave.

(b) “Interrogation” means questioning in a criminal investigation that may

elicit a self

- incriminating response from an individual and includes a law

enforcement official’s words or actions that the law enforcement official should know are reasonably likely to elicit a self

- incriminating response from the individual. [MCL 763.7(a), (b).]

D efendant was not “ under interrogation” within the meaning of MCL 763.9 when he uttered incriminating statements that were subsequently and inadvertently purged. The undisputed testimony of the EPS officers who interviewed defendant indicates that after defendant requested an attorney, question ing ceased, and t he incriminating statements that

followed were unsolicited. In short, there is no indication in the record that defendant made the incriminating statements during “questioning in a criminal investigation that [might have]

elicit [ed] a sel f

- incriminating response” or that they were given in response to “words or actions

that the law enforcement official should [have known were] reasonably likely to elicit a self

incriminating response from the individual. ” MCL 763.7(b). Consequently, defe ndant was not

entitled to an adverse

- inference instruction under MCL 763.9. Further

, defense counsel ’s failure

5 MCL 763.8(3) provides:

An individual who beli eves the individual’ s interrogation is being recorded may object to having the interrogation recorded. The individual’ s objection shall be

docu mented either by the individual’ s objection stated on the recording or the

individual ’ s signature on a document stating the objection. If the individual refuses to document the objection either by recording or signature, a law enforcement official shall document the obje ction by a recording or signed

document. A major felony recording may be made without the consent or knowledge of, or despite the objection of, the individual being interrogated.- 7

- to request such an instruction did not render her performance ineffective

. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Fail ing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.”).

Affirmed.

/s/ Jane M. Beckering

/s/ Michael J. Riordan

/s/ Thomas C. Cameron