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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 15, 2016

v No. 328930 Newaygo Circuit Court TONY LEE LINTON, LC No. 15-011017-FH

Defendant-Appellant.

Before: W ILDER , P.J., and M URPHY and O’B RIEN , JJ.

P ER C URIAM

.

Defendant, Tony Lee Linton, was convicted by a jury of manufac turing or delivering methamphetamine, MCL 333.7401(2)(b)( i ), second offense, MCL 333.7413(2), and operating or maintaining a laboratory involving methamphetamine, MCL 333.740 1c(2)(f), second offense, MCL 333.7413(2). He was sentenced to concurrent prison terms o f 5 to 40 years for each conviction. He appeals as of right his August 4, 2015 judgmentof sentence. We affirm.

This case arises out of the tra ffic stop of defendant, Ethan C umberledge, and Mark Grove on October 23, 2014. On that evening, law enforcement was sear ching the area surrounding the location of the stop after several suspects fled from a nearby residence during an unrelated investigation. As a part of th at investigation, Newaygo County Deputy David Israel had pulled over and was speaking with one of the suspect’s girlfriends. D uring their conversation, Israel noticed a pickup truck approaching that “caught [his] attention .” Israel decided to “step out in the roadway and stop the vehicle to make sure that the occupant s of the vehicle weren’t the suspects that [law enforcement was] looking for.”

Israel approached the vehicle, where he found Cumberledge in t he driver’s seat, Grove in the middle seat, and defendant in the passenger seat. Israel a sked the occupants for their identification, Cumberledge and Gr ove provided theirs, and defe ndant initially refused but eventually provided his hunting license. According to Israel, defendant “stated that he was up in the area raccoon hunting,” claimed to have done “nothing wrong, ” and was verbally aggressive” and “very argumentative” with him. After learning that Cumberl edge was driving on a suspended license and had an outstanding arrest warrant, Israel arrested him and eventually-2- placed him in his patrol vehicle. 1 When Israel re-approached the pickup, he “could smell a strong odor of chemicals coming out of the vehicle.”

Eventually, Israel “notice[d] a black bag that was not in the rear of the pickup truck when [he] first stopped it.” Inside of that bag, Israel found what he recognized as “a one-pot Methamphetamine lab.” Recognizing the extremely hazardous natu re of this, Israel requested

that additional officers come to the location of the traffic st op. One of those officers, Michigan State Police Detective Lieutenant Joel Abendroth, who testified “as an expert in Methamphetamine investigation” at trial, “immediately recognize d it as a one-pot Methamphetamine lab that had failed.” Also inside of the bag o r elsewhere in the pickup, law enforcement found “blister packs of Sudaphedrine,” “a plastic p ill grinder,” “two, double A lithium batteries,” “[a] bottle of lye or sodium hydroxide,” “a plastic bottle, with no label” that “tested positive as a strongl y acidic liquid, which . . . was e ither muriatic or sulfuric acid,” “an instant cold pack packaging,” “a gallon of Coleman fuel,” and “ [a] one-pound container of table

salt.” 2 According to Abendroth, these “components” “are all used to m anufacture Methamphetamine using the one-pot method.”

At trial, in addition to Israe l’s, Abendroth’s, and three othe r officers’ testimony, the prosecution presented Cumberledge’s and Grove’s testimony again st defendant as well. Cumberledge testified that defe ndant “was cooking Methamphetami ne” in the pickup shortly before the traffic stop on the evening of October 23, 2014. He recalled defendant retrieving “one of the bags,” removing various “components for the one pot” suc h as “Coleman fuel, a cold pack, and . . . a thing of lye,” and “mixing them and putting t hem into the bottle.” Grove testified similarly, recalling th at defendant had various metha mphetamine components “[f]izzing” in a Mountain Dew bottl e in the pickup shortly befo re the traffic stop that evening.

Defendant testified on his own behalf at trial, denying that h e was involved in any way with methamphetamine on the ni ght at issue and opining that Cum berledge and Grove testified against him “just to get off.” As indicated above, he was conv icted as charged and sentenced to 5 to 40 years in prison on each count. This appeal followed.

On appeal, defendant’s sole argu ment is that the jury’s verdic t on the charge of manufacturing or delivering methamphetamine was against the gre at weight of the evidence. To preserve a challenge based on a claim that the verdict was agai nst the great weight of the evidence, a defendant must have r aised the issue in the trial c ourt by moving for a new trial. People v Musser , 259 Mich App 215, 218; 673 NW2d 800 (2003). Here, defendant did not move for a new trial and conseque ntly failed to preserve this i ssue for appeal. People v

Cameron , 291 Mich App 599, 618; 806 NW2d 371 (2011). We review unpres erved issues for

1 According to Deputy Israel, Grove and defendant also had outst anding arrest warrants, but they were not immediately arrested becau se the warrants were out of other counties.

2 Law enforcement also found a coffee filter with methamphetamin e residue on it, but it appears that the filter was used earlier in the evening to snort “a lin e” of methamphetamine and unrelated to the manufacturing that was ta king place inside of the pickup

.-3- plain error affecting substantial rights. Id . “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error a ffected substan tial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

The test to determine whether a verdict is against the great we ight of the evidence is whether the evidence preponde rates so heavily against the ve rdict that it would be a miscarriage of justice to allow the verdict to stand. People v McCray , 245 Mich App 631, 637; 630 NW2d 633 (2001). “Conflicting testimony , even when impeached to some extent, is an insufficient ground for grantin g a new trial.” People v Lemmon , 456 Mich 625, 647; 576 NW2d 129 (1998). “[U]nless it can be said that directly contradictory testimony was so far impeac hed that it ‘was deprived of all probative value or that the jury could not beli eve it,’ or contradicted indisputable physic al facts or defied physical rea lities, the trial court must defer to the ju ry’s determination.” Id . at 645-646 (citation omitted). [ Musser , 259 Mich App at 218-219 (alte ration in original).]

Defendant was convicted of manufacturing or delivering methamp hetamine pursuant to MCL 333.7401(1), which provides, in relevant part, as follows: “Except as authorized by this article, a person shall not manufacture, create, deliver, or po ssess with intent to manufacture, create, or deliver a controlled substance . . . .” “With respe ct to manufacturing methamphetamine, the elements are (1) the defendant manufacture d a controlled substance, (2) the substance manufactured was methamphetamine, and (3) the def endant knew he was manufacturing methamphetamine.” People v Meshell , 265 Mich App 616, 619; 696 NW2d 754 (2005); see also MCL 333.7401(1). Similarly, with respect to d elivering methamphetamine, the elements are (1) the defendant d elivered a controlled substance , (2) the substance delivered was methamphetamine, and (3) the defendant knew he was delivering m ethamphetamine. See MCL 333.7401(1); see also M Crim JI 12.2. MCL 333.7106(3) defines “ ‘[m]anufacture’ [as] the production, preparation, propa gation, compounding, conversion, or processing of a controlled substance, directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extracti on and chemical synthesis.” MCL 333.7105(1) defines “ ‘[d]elive r’ or ‘delivery’ [as] the ac tual, constructive, or attempted transfer from 1 person to anothe r of a controlled substance, wh ether or not there is an agency relationship.” MCL 333.7105(1). “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, 180 (1993).

In this case, the record reflect s that there was an overwhelmi ng amount of evidence

introduced at trial that defenda nt manufactured methamphetamine

.

First, there was a substantial amount of evidence that defenda nt was the individual engaged in the manufacturing pr ocess. Both Cumberledge and Gro ve testified that defendant removed a bag containing the components for making methamphetam ine from the bed of the pickup and brought it into the passenger compartment. Cumbledg e and Grove both testified that defendant mixed a variety of these components together in a Mou ntain Dew bottle. Law

enforcement would later recover blister packs of Sudaphedrine, a pill grinder, double A batteries, a Mountain Dew bottle, a bottle of lye or sodium hydroxide, an unlabeled bottle that tested-4- positive for “a strongly acidic li quid,” and cold pack packagin g, and expert testimony established that these were all undoubtedly u sed in the pickup to manufactu re methamphetamine. Thus,

there was substantial evidence that defendant was involved in “ the production, preparation, propagation, compounding, conversion, or processing of a contro lled substance . . . by means of chemical synthesis” and thereby “manufacturing” methamphetamine . See MCL 333.7106(3);

see also Meshell , 265 Mich App at 619.

Second, there was a substantial amount of evidence that the su bstance produced by defendant was methamphetamine. Both Israel and Abendroth smell ed a strong chemical odor inside the pickup, and both affirmatively identified the Mounta in Dew bottle as being used to manufacture methamphetamine in the one-pot method. In short, A bendroth had “no doubt there was an active Methamphetamine lab” in the pickup at some point. In addition and as discussed above, the testimony of Cumberledge and Grove identified the su bstance being made in the Mountain Dew bottle as methamphetamine, and law enforcement rec overed items from the pickup that are commonly used to manufacture methamphetamine ac cording to Abendroth. Contrary to defendant’s assertion that there was no evidence th at methamphetamine was manufactured, there was a substa ntial amount of evidence that m ethamphetamine was being produced in the Mountain Dew bottle, and the jury could have re asonably concluded that this element was proven beyond a reasonable doubt. See Jolly , 442 Mich at 466; see also Meshell

, 265 Mich App at 619.

Third, there was a substantial amount of evidence that defenda nt knew that he was manufacturing methamphetamine. Both Cumberledge and Grove test ified that they used methamphetamine with defendant at his house before leaving to g o raccoon hunting. Furthermore, Cumberledge had used methamphetamine with defendan t before, had seen defendant make methamphetamine using the same one-pot method be fore, and had sold Sudafed to defendant for the purposes of making methamphetamine. Moreo ver, law enforcement recovered a combination of items from the truck that produce me thamphetamine when mixed together and observed a chemical reaction in a bottle of the ty pe that occurs when making methamphetamine using the one-pot method. Additionally, the pr osecution presented evidence that defendant had purchased a high volume of Sudafed during th e year prior to the traffic stop at issue in this case. This evidence strongly supports a conclusi on that defendant knew that he was manufacturing it in the truck. See Jolly , 442 Mich at 466; see also Meshell , 265 Mich App at

619.

Accordingly, we conclude that the jury’s verdict, assuming tha t it was premised on a manufacturing theory, was not aga inst the great weight of the e vidence. Musser , 259 Mich App at 218-219. On appeal, defendant ’s only argument against such a conclusion relies on his assumption that “failed” attempts at manufacturing methamphetam ine cannot constitute the manufacturing of methamphetami ne pursuant to MCL 333.7401(2)(b) ( i ). He does not provide citation to, and we are unable to find, any legal authority sup porting such a position. Thus, this argument is abandoned. People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Furthermore, regardless of whether his manufacturing efforts pr oved successful or unsuccessful, we are ultimately persuaded by the fact that he was, indeed, ma nufacturing methamphetamine. As he admits in his brief, “[t]here was evidence of an attempt to manufacture methamphetamine . . . .”-5- Similarly, there is strong evid ence that defendant delivered m ethamphetamine. Both Cumberledge and Grove testified that they used methamphetamine with defendant in defendant’s bedroom before leaving to go raccoon hunting. 3 Cumberledge testified that before leaving defendant’s house, he and defendant each snorted “a line” of me thamphetamine in defendant’s bedroom. According to Cumberledge, it was defendant who gave t he methamphetamine to him that they snorted. From this evidence, the jury could have rea sonably concluded that defendant transferred the methamphetamine to Cumberledge, which is suffic ient to establish the delivery

element. See People v Schultz , 246 Mich App 695, 703-704; 635 NW2d 491 (2001); see also MCL 333.7105(1).

Defendant’s argument against th ese conclusions relies on his c laim that Cumberledge’s testimony was “self-serving” and not credible, but such an argu ment is merely a request to credit contradictory testimony that appears more favorable to defendan t. “It is the province of the jury to determine questions of fact and assess the credibility of wi tnesses,” and requests for a new trial “based solely on the weight of the evidence regarding wit ness credibility are not favored.”

Lemmon , 456 Mich at 637, 639. Although witnesses disagreed as to whe ther Grove was present when defendant and Cumberledge snorted methamphetamine, defenda nt had the opportunity to cross-examine Cumberledge at trial and Grove at the preliminary examination. Id . at 646.

Defendant also testified at trial in his own defense. Id . Furthermore, Cumberledge’s testimony was not “so far impeached that it was deprived of all probative value or that the jury could not believe it,” nor did it contradict indisputable physical facts or defy physical realities. Musser

, 259 Mich App at 219 (quotation marks and citation omitted). Ul timately, the jury had the opportunity to evaluate the credibility of the witnesses and we igh the evidence before finding defendant guilty, and we defer t o its credibility determination s in doing so. Musser , 259 Mich App at 219.

In sum, the evidence here did not “preponderate[] so heavily a gainst the verdict that it would be a miscarriage of justice to allow the verdict to stand .” Musser , 259 Mich App at 218- 219. Therefore, defendant has failed to demonstrate any error, much less one that was plain and affected his substantial rights. Carines , 460 Mich at 763.

Affirmed.

/s/ Kurtis T. Wilder /s/ William B. Murphy

/s/ Colleen A. O’Brien

3 The only disparity in this testimony related to whether Grove was present at that time, a disparity that we fi nd largely irrelevant.