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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 14, 2016

v No. 324653
St. Clair Circuit Court JERRY JAMAL PRATHER, LC No. 14-001316-FH

Defendant-Appellant.

Before: O’C ONNELL
, P.J., AND M ARKEY AND O’B RIEN , JJ.

P ER C URIAM

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Defendant appeals by right his jury trial convictions of posse ssion with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), possessio n with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and possession of marijuana, MCL 333.7403(2)(d). Defendant was sentenced, as a second habitual offender, MCL 769.10, to 15 months to 30 years’ imprisonment for the possession with intent to deliver less than 50 grams of heroin conviction, 15 months to 30 years’ imprisonment for the possession with intent to deliver less than 50 grams of cocaine conviction, and one year imprison ment for the possession of marijuana conviction. We affirm.

At approximately 10:00 p.m. on May 7, 2014, Deputy Martin Stoy an of the St. Clair County Drug Task Force began surveillance on the Elmcourt Motel in Port Huron, Michigan in preparation for the execution of a search warrant. The task fo rce had received information earlier in the day that there w ere people at the hotel selling narcotics. Stoyan observed
codefendant Dalvontae Williams walk back and forth several time s between hotel rooms 14 and 15. Stoyan also observed anothe r codefendant, Dondre Neal, ent er and exit multiple cars that arrived for brief peri ods of time at the mot el. Stoyan then ob served defendant a pproach a vehicle
and escort two women and two infan ts into room 14 of the motel.

At approximately 1:00 a.m. on May 8, 2014, members of the task force executed their search warrant on rooms 14 and 15 of the motel. Upon entering room 14, the officers observed Williams, Neal, defendant and the two women and infants defenda nt had brought into the room. Next to defendant, officers saw a stack of plastic sandwich bag s. Inside of one of the plastic bags, officers discovered cocaine and heroin packaged within lo ttery tickets. Deputy Jason Sklba, another member of the task force, testified that it was very common for heroin to be packaged and sold within lottery tickets. In addition to the n arcotics, officers discovered a-2- digital scale and a Western Union receipt. Sklba testified tha t drug dealers commonly use
Western Union to transfer mone y. In room 15, officers discover ed a laboratory for preparing methamphetamine.

Defendant had $345 in his pocket, and he had an additional $8 0 hidden under the insole of his shoe. At trial, defenda nt testified that the money foun d in his pocket was from his job working at a car wash in Detroit; he denied that there was any money hidden in his shoes. Defendant also denied that there were any drugs in the motel ro om and that any drugs that were found had been planted by the police.

Defendant argues that he was denied his Sixth Amendment right to the effective assistance of counsel when his trial counsel failed to object t o drug profile testimony at trial. We disagree.

To preserve an ineffective assistance of counsel issue for app eal, a defendant must have
moved for a new trial or an evid entiary hearing on that basis. People v Barclay , 208 Mich App 670, 672; 528 NW2d 842 (1995). Defendant failed to move the tr ial court for a new trial or an evidentiary hearing; therefore, our review of this unpreserved issue is limited to the existing
record. Id . The ultimate constitutional issue arising from a claim of in effective assistance of
counsel claim is reviewed de novo. People v LeBlanc , 465 Mich 575, 582; 640 NW2d 246 (2002). Any findings of fact are r eviewed for clear error. Id . at 579.

To prevail on an ineffective assistance of counsel claim, “a d efendant must show that counsel’s performance fell below an objective standard of reaso nableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens

, 446 Mich 298, 338; 521 NW2d 797 (1994). “Because of the diffic ulties inherent in making the evaluation, a court must indulge a strong presumption that coun sel’s conduct falls within the wide range of reasonable professional assistance[.]” Strickland v Washington , 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To satisfy the prejudice prong of the analysis, the
defendant must establish “a reas onable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id . at 695.

Defendant argues that the performance of his trial counsel was deficient when counsel failed to object to the drug profile testimony given by officer s who assisted in executing the
search warrant at the Elmcourt Motel. The seminal case address ing this issue is People v Murray , 234 Mich App 46, 53; 593 NW2d 690 (1999), which noted that dr ug profile evidence is inherently prejudicial because the evidence has the potential t o suggest that regular, innocuous events were instead criminal activity. In light of this, most courts “have held drug profile evidence is inadmissible as substantive evidence of guilt, beca use ‘proof’ of crime based wholly or mainly on these innocuous chara cteristics coul d potentially convict innocent people.” Id

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But drug profile evidence is adm issible “to explain the signif icance of items seized and the circumstances obtaining duri ng the investigation of crimina l activity,” and to assist the jury in understanding evidence in drug cases. Id . For this testimony to be admissible: “(1) the expert must be qualified; (2) the evidenc e must serve to give the trie r of fact a better understanding of the evidence or assist in determining a fact in issue; and (3) the evidence must be from a recognized discipline.” People v Williams (After Remand) , 198 Mich App 537, 541; 499 NW2d-3- 404, 407 (1993). The crucial question is whether the testimonywill assist the factfinder in making the ultimate decision in the case. People v Ray , 191 Mich App 706, 707; 479 NW2d 1 (1991).

Deputy Sklba was the primary drug profile witness. Sklba test ified that he had been employed by the St. Clair County Sheriff’s Department for five years and had been a member of the drug task force for three years. Before he began working f or St. Clair County, Sklba was a police officer for a different c ity for three years. Sklba tes tified that he received specialized training before joining the drug task force. This included evi dence technician training, narcoterrorism training, and track and concealment training. This t raining and experience qualified Sklba to serve as an expert w ith respect to drug trafficking. In addition, the information provided by Sklba concerning drug packagin g and distribution techniques is not “within the layman’s common knowledge and was useful to the jury.” Williams , 198 Mich App at 542. Finally, “[t]here is . . . no serious que stion that drug-related law enf orcement is a recognized area of expertise.” Id . Therefore, Sklba presented a dmissible expert testimony. Id . at 541-542.

But it still must be determined if Sklba’s testimony exceeded admissible background or modus operandi evidence, or whether it was inadmissible because it embraced the ultimate issue of defendant's guilt. See Murray , 234 Mich App at 58-59. The Court in Murray set forth four factors to make this determination. First, the purpose given f or the admission of the drug profile testimony must be either to provide an explanation of modus ope randi or to assist the jury as background information. Id . at 56. The prosecutor may not argue that the profile evidenc e has any value beyond its assistance to the jury as modus operandi e vidence or background
information. Id . at 57. Second, the profile alone should not inherently allow a jury to infer the defendant’s guilt. Id . at 57. “The prosecutor must introduce and argue some additio nal evidence from the case that the jury can use to draw an inference of cri minality; multiple pieces of a profile do not add up to guilt without something more.” Id . Third, the trial court must usually instruct the jury regarding the proper limited use of the profi le testimony. Id . Finally, “the expert witness should not expres s his opinion, based on a profi le, that the defendant is guilty, nor should he expressly compare the defendant's characteristics to the profile in such a way that guilt is necessarily implied.” Id

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In reviewing the first part of the test, we conclude that Sklb a’s testimony regarding drug packaging and distribution we nt beyond providing mere backgroun d information and, in fact, served as substantive evidence of defendant’s guilt. Specifica lly, instead of asking for general background information regarding how heroin and cocaine are pac kaged and sold, the prosecution asked Sklba if there was “anything unusual about th e packaging of the four packets in this case or [is this] someth ing that you’ve seen before?” Sklba responded that the fact that the heroin was packaged in lottery tickets indicated that it wa s being prepared to be sold and that “90 percent of the time” heroin is sold within lottery tickets. Sklba was then asked how cocaine is normally packaged for sale. Sklba described how cocaine is initially put into a whole plastic sandwich bag. Sklba described h ow the dealers will then tear o ff the portion of the bag containing the cocaine, tie off the end, and sell the cocaine. The remaining unsold portion of the bag is referred to as the “dealer’s end.” After describing thi s general process of how cocaine is packaged and sold, Sklba was then asked this question that went beyond the general information he could testify to: “The crack cocaine that you saw in this h otel room, did that . . . match kind-4- of what you’re just talking about [with] the small amounts of t he end of the baggie?” Sklba responded that it did in fact mat ch the description he just gav e.

During its closing argument, the prosecution argued that this testimony from Sklba, as well as his testimony regarding th e Western Union receipt, was evidence of defendant’s guilt. This testimony also implicates the fourth factor of the test se t forth in Murray . While Sklba did not expressly testify that defendant was guilty, he did “expres sly compare the defendant’s characteristics to the profile in such a way that guilt is nece ssarily implied.” Id . Therefore, the Sklyba’s testimony, viewed in conjunction with the prosecution’ s closing argument, exceeded the limitations of drug profile evidence discussed in Murray

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Defendant does not argue that th e trial court erred in admitti ng this testimony or by failing to give a limiting instruction. Instead, defendant arg ues that his trial counsel was ineffective because counsel failed to object to the testimony. Because Sklba’s testimony was being offered as substantive evid ence of defendant’s guilt rath er than as background information, we agree that defendant’s trial counsel’s failure to object “fe ll below an objective standard of reasonableness” and as a result constituted deficient performan ce. Pickens , 446 Mich at 338.

But to satisfy his claim of ineffective assistance of counsel, defendant must also demonstrate that he was prejudiced by this deficient performanc e. Id . at 312, 338; Strickland

, 466 US at 687, 694-695. As defendant points out, without the d rug profile evidence, the remaining evidence consists of d efendant’s proximity to the coc aine, heroin, a nd two individuals, Williams and Neal, who were engaged in drug sales. Defendant a lso had a large amount of cash in his pocket and had more money hidden under the insole of his shoe. In addition, defendant’s own testimony was incriminating. Defendant claimed that he did not have any money hidden in his shoe despite the fact that multiple officers testified that defendant hid $80 beneath the insole
of his shoe. Defendant also de nied that there were any drugs w hen he was in the motel room and that police had planted evidence of drug distribu tion in the ro om. This contradicted Neal’s guilty plea which was introduced at defe ndant’s trial. In light of de fendant’s proximity to the drugs, the amount of money found in his pocket and hidden in his shoe, the short-stay traffic at the motel, and defendant’s incriminating testimony, it cannot be said thata reasonable probability exists that but for the error, “ ‘the factfinder would have had a reas onable doubt respecting guilt.’ ”
Pickens , 446 Mich at 312, quoting Strickland

, 466 US at 695. In sum, we cannot conclude that defense counsel’s deficient pe rformance prejudiced defendant as required.

We affirm.

/s/ Peter D. O'Connell /s/ Jane E. Markey
/s/ Colleen A. O’Brien