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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

June 9, 2015 

v No. 319954 

Oakland Circuit Court 

STEVEN LEE MOSS, LC No. 2013-244474-FC 

 Defendant-Appellant. 

Before: JANSEN, P.J., and SAWYER and FORT HOOD, JJ. 

PER CURIAM. 

 Following a bench trial, defendant was convicted of possession with intent to deliver 

1,000 or more grams of cocaine, MCL 333.7401(2)(a)(i), and possession of a firearm during the 

commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 

15 to 45 years’ imprisonment for the drug conviction, and a consecutive two-year term of 

imprisonment for the felony-firearm conviction. He appeals as of right. We affirm. 

 Defendant’s convictions arise from his purchase of 10 kilograms of cocaine from a police 

undercover informant. After learning that defendant was interested in acquiring a large amount 

of cocaine and after conducting preliminary surveillance of defendant’s activities, the police 

arranged for defendant to meet their informant. In addition to the police testimony, the 

prosecution presented evidence of video and audio recordings capturing the meetings and 

telephone conversations between defendant and the informant. The first meeting, on November 

6, 2012, lasted approximately 30 minutes and defendant agreed to purchase 10 kilograms of 

cocaine. At their next meeting on November 7, 2012, defendant and the informant discussed the 

drug deal, and defendant unsuccessfully attempted to persuade the informant to increase the 

purchase amount to 40 kilograms. In a restaurant parking lot, the informant showed defendant 

10 kilograms of cocaine that were hidden in a compartment of an undercover police van. 

Defendant was instructed to contact the informant if he wanted to consummate the deal. 

Defendant contacted the informant on November 8, 2012, and they agreed to meet at a 

restaurant. They then agreed to transact the drug deal on November 9, 2012, which was when 

defendant believed he would have all the purchase money. Defendant unsuccessfully attempted 

to convince the informant to complete the transaction at defendant’s house. Defendant also 

discussed his desire for future transactions with the informant. On November 9, 2012, defendant 

and the informant met in the parking lot of a Home Depot store, as planned. The informant was 
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accompanied by another undercover officer who drove the van containing the drugs, and 

defendant also brought an associate with him.1

 After defendant showed that he had the purchase 

money, which was in a suitcase in his car, the men walked to the undercover van where 

defendant was again shown the product. Defendant took possession of the van keys, got in the 

driver’s seat, and turned on the ignition before the police remotely disabled the van. Defendant 

fled the vehicle on foot, but was arrested after a brief chase.

I. ENTRAPMENT 

 Defendant argues that the trial court erred in denying his motion to dismiss on the basis 

of entrapment. We disagree. We review de novo the trial court’s determination whether the 

police entrapped a defendant, but review the trial court’s findings of fact for clear error. People 

v Vansickle, 303 Mich App 111, 114-115; 842 NW2d 289 (2013). A finding of fact is clearly 

erroneous if this Court is left with a firm conviction that the trial court made a mistake. Id. at 

115. 

 Defendant has the burden of proving the defense of entrapment by a preponderance of the 

evidence. People v Johnson, 466 Mich 491, 498; 647 NW2d 480 (2002); People v Akhmedov, 

297 Mich App 745, 752; 825 NW2d 688 (2012). “Entrapment occurs if (1) the police engage in 

impermissible conduct that would induce an otherwise law-abiding person to commit a crime in 

similar circumstances or (2) the police engage in conduct so reprehensible that the court cannot 

tolerate it.” Vansickle, 303 Mich App at 115 (citation omitted). The police do not engage in 

entrapment by merely providing a defendant with the opportunity to commit the crime. Johnson, 

466 Mich at 498. In determining whether defendant was impermissibly induced by the police to 

commit criminal activity, this Court should consider the following factors: 

 (1) whether there existed appeals to the defendant’s sympathy as a friend, 

(2) whether the defendant had been known to commit the crime with which he 

was charged, (3) whether there were any long time lapses between the 

investigation and the arrest, (4) whether there existed any inducements that would 

make the commission of a crime unusually attractive to a hypothetical lawabiding citizen, (5) whether there were offers of excessive consideration or other 

enticement, (6) whether there was a guarantee that the acts alleged as crimes were 

not illegal, (7) whether, and to what extent, any government pressure existed, (8) 

whether there existed sexual favors, (9) whether there were any threats of arrest, 

(10) whether there existed any government procedures that tended to escalate the 

criminal culpability of the defendant, (11) whether there was police control over 

any informant, and (12) whether the investigation was targeted. [Id. at 498-499.] 

 Defendant argues that the police entrapped him by exploiting his friendship with Michael 

Bennett, who introduced him to the paid police informant, Diego. Defendant’s friendship 

 

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 The associate, Lamar Kendrick, was also charged for his participation in the transaction. He 

pleaded guilty to conspiracy to deliver 1,000 or more grams of cocaine, MCL 750.157a, and 

possession with intent to deliver 1,000 or more grams of cocaine. 
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exploitation claim is two-fold: (1) that Bennett appealed to defendant’s sympathy, claiming to 

be in danger because he owed people money, and (2) that because of their friendship, Bennett 

knew that defendant was vulnerable because he was in danger of losing his West Bloomfield 

home, and Bennett used that information to pressure defendant into participating in drug 

trafficking. We agree with the trial court that the record does not support defendant’s claim that 

he was unduly pressured into purchasing the drugs or that he was an unwilling participant. 

 Defendant is correct in his argument that entrapment occurs when “investigative 

enforcement measures extend beyond a tolerable level when by design the government uses 

continued pressure [or] appeals to friendship or sympathy[.] People v Jamieson, 436 Mich 61, 

89; 461 NW2d 884 (1990). However, defendant’s arguments are inconsistent with the evidence 

presented at the entrapment hearing. Initially, defendant overstates the depth of his friendship 

with Bennett as indicated by the evidence. According to defendant’s testimony, he originally 

talked to Bennett, whom defendant believed was imprisoned for a drug offense, on the telephone 

while Bennett was in federal prison with defendant’s cousin; they met “face to face” in April 

2011. As the trial court aptly observed, defendant’s testimony indicated that he had only 

sporadic and limited contact with Bennett from April 2011 until Bennett introduced defendant to 

Diego in November 2012. During that period, Bennett would often stop by defendant’s rental 

properties, they would have brief meetings, and they left the rental properties on occasion and ate 

together. Bennett had never been to defendant’s primary residence, and defendant did not know 

where Bennett lived or much about his upbringing. Defendant described Bennett as an 

“acquaintance and borderline friend.” An acquaintance relationship is not sufficient to support a 

defendant’s claim of entrapment. People v Juillet, 439 Mich 34, 66-67; 475 NW2d 786 (1991). 

In addition, defendant’s testimony that he ultimately agreed to participate in the drug transaction 

because he needed the money to save his West Bloomfield residence suggests that he was not 

motivated because of his friendship with Bennett, but by his own opportunity for profit. 

 Regarding Bennett’s alleged relentless pressuring, defendant testified that Bennett 

approached him about obtaining drugs in April 2012, and continuously pressured him until he 

finally agreed in November 2012. Defendant explained that Bennett first broached the subject 

by asking a general question about where to obtain drugs to a group of people who were at one 

of defendant’s rental properties. Thereafter, Bennett continued to ask defendant about 

participating in a drug deal whenever he stopped by defendant’s properties. As the trial court 

relevantly observed, defendant “didn’t have to tell Mr. Bennett where [he] was located when Mr. 

Bennett would call and want to see him, especially after the discussions of—of dealing in drugs 

came about.” Defendant’s own testimony established that he chose to expose himself to the 

allegedly drug-dealing Bennett, “a borderline friend,” which belies his claim that he was under 

unwanted, persistent pressure to participate in a drug deal. 

 Furthermore, after agreeing to participate in the drug deal, defendant met Bennett and 

Diego at a restaurant and discussed the drug transaction. Notably, defendant brought more than 

$230,000 for the drug deal (while, according to defendant, Bennett contributed $39,000), Bennett 

left shortly after introducing defendant to Diego, and Bennett did not attend any further meetings 

between defendant and Diego. In the recorded interactions that followed, defendant was 

observed and heard discussing the purity of the drugs with Diego, being shown drugs in a hidden 

compartment in a van, seeking to purchase a greater quantity, contacting Diego, and inviting 

Diego to transact the drug deal at defendant’s residence. A special agent for the Drug 
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Enforcement Administration, who observed the interactions, testified that defendant did not 

appear to be nervous during the meetings and phone conversations, and it did not appear that this 

was defendant’s first time being involved in a drug transaction. The evidence further showed 

that defendant voluntarily met with Diego, acted of his own free will, and was never threatened. 

Consequently, the record does not support defendant’s claim that, through an informant, the 

police placed undue pressure on him to buy drugs. It supports the trial court’s finding that 

defendant was a willing participant. 

 Defendant’s suggestion that his opportunity to save his primary residence was a sufficient 

inducement to commit the crime also lacks merit. Defendant testified that the drug deal would 

provide him an additional $90,000 to help save his primary residence. The evidence disclosed, 

however, that defendant owned numerous rental properties, including a hall and several rental 

houses, but he claimed to be unaware of any of the values of those properties. He admitted that, 

for various reasons, he did not put any of those properties up for sale. Moreover, as the trial 

court found, “if his sole purpose was to keep his house from being foreclosed upon, one wonders 

why he couldn’t work with the bank with a substantial payment [more than $230,000] toward his 

mortgage to save his home.” Defendant and a witness also testified that defendant gave the 

witness a substantial amount of money to invest in a shrimp business during this period that he 

was in danger of losing his house. 

 In sum, defendant failed to establish by a preponderance of the evidence that either 

Bennett or Diego placed excessive pressure on him, that Bennett made a sufficient emotional 

plea to induce him to engage in the criminal activity, or that a friendship between defendant and 

Bennett was otherwise exploited to induce defendant to commit the crime. Further, no excessive 

consideration was provided to defendant. The police actions were insufficient to induce or 

instigate an otherwise unwilling average person, similarly situated to defendant, to commit the 

crime. Rather, the facts indicate that defendant was simply offered an opportunity to commit the 

crime, which is insufficient to support a finding of entrapment. Johnson, 466 Mich at 498. 

Consequently, the trial court did not clearly err in finding that defendant was not entrapped. 

II. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant next argues that the trial court erred by denying his motion for a new trial 

based on ineffective assistance of counsel. Defendant argues that defense counsel was 

ineffective for recommending that defendant waive his right to a jury trial. We disagree. 

 We review a trial court’s decision on a motion for a new trial for an abuse of discretion. 

People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). A claim alleging ineffective 

assistance of counsel presents a mixed question of law and fact. People v LeBlanc, 465 Mich 

575, 579; 640 NW2d 246 (2002). Questions of law are reviewed de novo, and a trial court’s 

findings of fact, if any, are reviewed for clear error. Id. To establish ineffective assistance of 

counsel, defendant first must show that counsel’s performance was below an objective standard 

of reasonableness. People v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011). 

Second, defendant must show that, but for counsel’s deficient performance, it is reasonably 

probable that the result of the proceeding would have been different. Id. at 290. 
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 A criminal defendant has the ultimate authority to make certain fundamental decisions 

regarding his case, including the decision whether to waive a jury. Jones v Barnes, 463 US 745, 

751; 103 S Ct 3308; 77 L Ed 2d 987 (1983). The record shows that defendant’s jury waiver 

complied with MCR 6.402(B), and was knowing and voluntary. Defendant acknowledged 

during the Ginther2 hearing that he was questioned about his decision to waive a jury to ensure 

that it was a voluntary decision. Defense counsel testified that he explained “exactly” what a 

jury waiver meant to defendant. The colloquy between defendant and defense counsel during the 

waiver proceeding reveals that defendant understood his right to a jury trial, including the 

difference between a bench and jury trial, and voluntarily waived that right. Specifically, 

defendant acknowledged his understanding that, by waiving his right to a jury, “the Judge will be 

the fact finder and will make all the findings necessary[.]” Thus, the record belies defendant’s 

claim that he would not have waived his right to a jury had he known that it meant that the trial 

court would be the trier of fact. 

 The decision to recommend a jury or bench trial is within the purview of trial strategy, 

People v Davenport (After Remand), 286 Mich App 191, 197; 779 NW2d 257 (2009), which this 

Court does not second-guess. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). 

Defendant claims, however, that defense counsel’s advice was improperly based on his lack of 

preparedness to proceed to trial. Defendant testified that on the first day of the entrapment 

hearing, defense counsel told him that he was “get[ting] a bench trial” because counsel was not 

prepared to proceed to trial immediately after the entrapment hearing and needed to “buy [] more 

time.” In contrast, defense counsel testified that he had strategic reasons for recommending a 

bench trial and, had trial started immediately, he “would have been prepared for the trial.” 

Counsel explained that he and defendant had discussed that there was only one defense to the 

charges, which was entrapment, and that the entrapment issue could not be argued at trial. 

Counsel advised defendant that if he did not prevail at the entrapment hearing, defendant should 

immediately appeal the decision. A stipulated-fact bench trial was the most expeditious in that 

regard, especially given that “the prosecution had obviously overwhelming evidence” against 

defendant. In counsel’s opinion, it “would have been a bit of a charade and a waste of time to 

impanel and go through a jury[.]” According to defense counsel, defendant understood that he 

lacked any other defense, knew that he would likely be convicted at trial, agreed with counsel’s 

strategy, and never expressed any dissatisfaction with counsel’s representation. 

 As the trial court below observed, resolution of this claim depended on how the court 

resolved the conflicting accounts of defense counsel and defendant. The trial court determined 

that defendant was not credible. This Court gives deference to a trial court’s superior ability to 

judge the credibility of witnesses who appeared before it. People v Farrow, 461 Mich 202, 209; 

600 NW2d 634 (1999). Moreover, as the trial court observed, other aspects of the record 

supported defense counsel’s testimony. The parties’ testimony discloses that defense counsel, 

who was defendant’s fifth attorney, agreed to represent defendant with full knowledge that a trial 

was imminent. Although trial was forthcoming, both the prosecutor and defense counsel advised 

the court that, at the time of the entrapment hearing, neither had information that the trial was 

 

2 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 
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scheduled to immediately follow the entrapment hearing. Therefore, defense counsel would not 

have had any reason to make that representation to defendant. In addition, upon filing his 

appearance, defense counsel requested and was granted an adjournment to prepare for the 

entrapment hearing. As the trial court noted, the record reveals that defense counsel was present 

and prepared for the three-day entrapment hearing and much of the same evidence and testimony 

from the entrapment hearing presumably would be presented at trial. In light of this record, and 

affording deference to the trial court’s superior ability to evaluate credibility, we reject 

defendant’s claim that he agreed to forego his right to a jury trial because defense counsel told 

defendant that he was not prepared to proceed with a jury trial. Rather, the decision was a 

tactical choice, which this Court will not second-guess. Russell, 297 Mich App at 716. 

 Defendant complains that by recommending a bench trial, defense counsel improvidently 

allowed defendant’s testimony at the entrapment hearing, wherein defendant admitted his 

involvement in the drug offense, to be available to the same judge who tried the case. Contrary 

to what defendant argues, however, defense counsel did not stipulate to the admission of 

defendant’s testimony at trial, and the record discloses that it was not admitted or considered at 

trial. The trial court expressly stated that it did not consider defendant’s entrapment hearing 

testimony at trial, and that its determination of defendant’s guilt was based solely on the 

testimony, facts, and exhibits that were admitted at the trial. The trial court also recognized the 

prohibition against considering a defendant’s testimony at an entrapment hearing as substantive 

evidence. In a bench trial, it is presumed that the trial court can ignore inadmissible evidence 

when rendering its decision. People v Taylor, 245 Mich App 293, 305; 628 NW2d 55 (2001) 

(citation omitted). A review of the trial court’s findings of fact and conclusions of law at the 

bench trial establishes that defendant’s entrapment hearing testimony did not affect the trial 

court’s verdict, which instead was clearly based on the evidence properly presented at trial. 

 In sum, under the circumstances, defense counsel’s decision to recommend a bench trial 

was within the purview of trial strategy, Davenport (After Remand), 286 Mich App at 197, and 

did not fall below an objective standard of reasonableness, Armstrong, 490 Mich at 289-290. 

“The fact that trial counsel’s strategy may not have worked does not constitute ineffective 

assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 

(1996). 

III. SCORING OF OFFENSE VARIABLES 

 Lastly, defendant argues that the trial court improperly scored OV 14 and OV 19 of the 

sentencing guidelines. Again, we disagree. When reviewing a trial court’s scoring decision, the 

trial court’s “factual determinations are reviewed for clear error and must be supported by a 

preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). 

“Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, 

i.e., the application of the facts to the law, is a question of statutory interpretation, which an 

appellate court reviews de novo.” Id. 

A. OV 14 

 MCL 777.44(1)(a) directs a score of 10 points if “[t]he offender was a leader in a 

multiple offender situation.” The entire criminal transaction should be considered. MCL 
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777.44(2)(a). The evidence indicates that defendant arranged a large drug transaction with a 

police informant. Lamar Kendrick accompanied defendant to the prearranged location for the 

buy. Kendrick remained in the car with the keys and the purchase money. Another person, Jay 

Smith, was at defendant’s house, waiting for him to return with the drugs so that Smith could 

purchase a portion. The evidence supports the trial court’s finding that more than one offender 

was involved in this criminal episode, and that defendant, the person who negotiated the 

transaction, was the leader. Therefore, the trial court did not err in assessing 10 points for OV 

14. 

B. OV 19 

 OV 19 must be scored at 10 points if “[t]he offender otherwise interfered with or 

attempted to interfere with the administration of justice.” MCL 777.49. In assessing points 

under OV 19, a court may consider the defendant’s conduct after the completion of the 

sentencing offense. People v Smith, 488 Mich 193, 200; 793 NW2d 666 (2010). A defendant 

interferes with the administration of justice by “oppos[ing] so as to hamper, hinder, or obstruct 

the act or process of administering judgment of individuals or causes by judicial process.” 

People v Hershey, 303 Mich App 330, 343; 844 NW2d 127 (2013). This Court has specifically 

recognized that a defendant’s conduct of “fleeing from police contrary to an order to freeze,” is 

sufficient to support a score of 10 points under OV 19. Id. at 343-344. 

 In this case, there was evidence that after defendant put the undercover van in reverse to 

leave, a detective stopped the van with a remote control kill switch and pulled the police vehicle 

behind the van. The detective and other officers were in fully marked police gear. Defendant 

exited the vehicle and “attempted to run approximately twenty feet” into “a berm, a grassy area.” 

The detective identified himself as a police officer, ordered defendant to the ground, pulled his 

weapon, and “again ordered to the ground, which he finally complied.” (Emphasis added.) 

Although defendant ultimately complied with the detective’s command to stop and get on the 

ground, there was evidence that defendant initially disobeyed the directive, causing the detective 

to pull his weapon and “again” order defendant to the ground. Given that defendant initially 

disregarded a direct order from the police, a preponderance of the evidence supports that he 

interfered with the administration of justice. Id. at 343-344. Accordingly, the trial court did not 

err in assessing 10 points for OV 19. 

 Affirmed. 

/s/ Kathleen Jansen 

/s/ David H. Sawyer 

/s/ Karen M. Fort Hood