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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 14, 2015

v No. 320376 Gogebic Circuit Court JUSTIN CHRISTOPHER FARRSIAR, LC No. 2013-000070-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and S AAD and M URRAY , JJ.

P ER C URIAM

. Defendant appeals as of right from his conviction on three cou nts (counts 3, 4, & 5 in the information) related to manufacturing methamphetamines (meth). 1 See MCL 333.7401c(1)(a), (2)(d) and (2)(f). He was sentenced as a habitual offender, se cond offense, MCL 769.10, to serve 96 months to 30 years in prison. We affirm.

I. FACTS

On January 2, 2013, members of the Upper Peninsula Substance E nforcement Team (UPSET) responded to a suspected meth lab located in a house in the city of Ironwood. By the time they arrived a fire had damaged several parts of the house , including the floor. In an apartment inside the house the team found chemicals and equipme nt used to make “one-pot” meth. Tammy Korpela rented the apartment and was dating and ha d a son with defendant. According to Korpela, she and defendant were both meth users an d used meth together during their relationship. At the time of defendant’s trial, Korpela had pleaded guilty to several felony counts related to manufacturing meth, and was in jail awaiting sentencing. Korpela agreed to testify truthfully at defendant ’s trial and was given the opportunity to plead guilty to a lesser charge.

1 Counts 1 and 2 were based on manufacturing a controlled substa nce in the presence of a minor. Because the evidence adduced at trial was that there were no ch ildren present at the time the offense occurred, the trial court granted defendant’s motion fo r a directed verdict on these
counts.-2- According to Korpela, she and defendant made meth together on December 31, 2012, at her apartment. They had purchased boxes of pseudoephedrine, an ingredient used to make meth, over the previous months and purchased the other necessary hous ehold ingredients earlier that day. After making the meth they left the apartment and drove t o Korpela’s friend’s house. When they returned an hour later, they saw fire trucks and knew that there had been a fire. According to Korpela, defendant t ook Korpela back to her friend ’s house and then went to his motel room to destroy evidence. Defendant returned a short tim e later with their son, and they fled to Duluth, Minnesota. They returned to Ironwood the next day, planning to leave again, but Korpela decided she did not want to run. Both were subsequentl y arrested. Korpelainitially told the police that she had made the meth by herself, but she later accepted a plea agreement and changed her story, implicating defendant.

II. SUFFICIENCY O F THE EVIDENCE

Defendant argues that the evidence was insufficient to convicthim. While this Court reviews challenges to the sufficiency of the evidence de novo, see People v Henderson , 306 Mich App 1, 8; 854 NW2d 234 (2014), “[t]he test for determining the sufficiency of evidence in a criminal case is whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt beyond a reasonable doubt,” People v Gonzalez , 468 Mich 636, 640; 664 NW2d 159 (2003). “The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibil ity choices in support of the jury verdict.” Id. at 640-641 (citation omitted).

Defendant’s primary argument is that the evidence was insuffic ient because Tammy Korpela was not a credible witn ess. “[A]bsent exceptional circ umstances, issues of witness credibility are for the jury . . . .” People v Lemmon , 456 Mich 625, 642; 576 NW2d 129 (1998). See also People v Avant , 235 Mich App 499, 506; 597 NW2d 864 (1999) (“Questions of credibility are left to the trier of fact and will not be resol ved anew by this Court.”). On crossexamination, Korpela conceded tha t she changed her story and im plicated defendant immediately after pleading guilty pursuant to a plea bargain from the prose cutor’s office. The jury also heard Korpela testify that she suffers from and is medicated for ment al illness that affects her thought process. On the other hand, Korpela’s story is at least partia lly supported by (1) video surveillance images that show her and defendant purchasing the household ingredients used to make meth, (2) pharmacy record log s indicating that defendant b ought pseudoephedrine, and (3) instructions for making meth found on defendant’s phone. Presu mably, the jury found Korpela to be a credible witness and beli eved that she was telling the truth at trial.

Accordingly, there was both dir ect and circumstantial evidence that supported the verdict. “Circumstantial evidence and reasonable inferences arising from that evidence may constitute sufficient evidence to find all the elements of an offense.” People v Meshell , 265 Mich App 616, 621; 696 NW2d 754 (2005) (citation omitted). Because a rationa l trier of fact could have found defendant guilty beyond a reason able doubt, the evidence was su fficient to convict defendant.

III. DOUBLE JEOPARDY-3- Defendant argues that his conviction on count 5 (a violation o f MCL 333.7401(2)(f)) violates double jeopardy because it imposes a second punishment for the same offense as underlies his convictions in count s 3 and 4 (violations of MCL 333.7401(2)(d)).

Defendant did not raise this i ssue below. A double-jeopardy c hallenge raised

for the first time on appeal, [is] not preserved for appellate review. However, a double jeopardy issue presents a significant constitutional que stion that will be considered on appeal regardless of whether the defendant raised it before the trial court. We review an unpreserved claim that a defendant’s doubl e jeopardy rights have been violated for plain erro r that affected the defendant’ s substantial rights, that is, the error affected the outcome of the lower court proc eedings.” Reversal is appropriate only if the plain error resulted in the convicti on of an innocent defendant or seriously affected t he fairness, integrity, or pub lic reputation of the judicial proceedings. [ People v McGee , 280 Mich App 680, 682; 761 NW2d 743 (2008 (citations omitted).]

“Both the United States and the Michigan constitutions protect a defendant from being placed twice in jeopardy, or subject to multiple punishments, f or the same offense.” Id . at 682. “ ‘Judicial examination of the s cope of double jeopardy protectio n under both constitutions is confined to a determination of legislative intent.’ ” Id. , quoting People v Parker , 230 Mich App 337, 342; 584 NW2d 336 (1998). “[T]he validity of multiple pun ishments under the Michigan Constitution is determined under the federal Blockburger [2] “same elements” standard.” Id. at 682-683. In Blockburger , the United States Supreme Court stated, “[W]here the same act or transaction constitutes a violation of two distinct statutory p rovisions, the test to be applied to determine whether there are two offenses or only one, is whethe r each provision requires proof of a fact which the other does not.” Blockburger v United States , 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). The Blockburger test is called the “same eleme nts” test because it examines the abstract elements of the offenses, rather than the facts ac tually adduced at trial. See People v Smith , 478 Mich 292, 306, 311; 733 NW2d 351 (2007). The Blockburger test is satisfied, and there is no double-jeopardy violation, when each offense “requi res proof of a fact that the other does not”—in other words, when each offense contains an element the other does not. McGee
, 280 Mich App at 683.

All three of defendant’s convi ctions were based on MCL 333.740 1c(1) and (2), which provide as follows:

(1) A person shall not do any of the following:

(a) Own, possess, or use a vehicle, building, structure, place, or area that he or she knows or has reason to know is to be used as a location to manu facture a controlled substance in viola tion of section 7401 or a counterf eit substance or a controlled substance analogue in violation of section 7402.

2 Blockburger v United States , 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).-4- (b) Own or possess any chemical or any laboratory equipment tha t he or she knows or has reason to know is to be used for the purpose of ma nufacturing a controlled substance in viola tion of section 7401 or a counterf eit substance or a controlled substance analogue in violation of section 7402.

(c) Provide any chemical or laboratory equipment to another per son knowing or having reason to know that the other person intends to use thatchemical or laboratory equipment for the pur pose of manufacturing a control led substance in violation of section 7401 or a c ounterfeit substance or a contr olled substance analogue in violation of section 7402.

(2) A person who violates thi s section is guilty of a felony pu nishable as follows:

(a) Except as provided in subdivisions (b) to (f), by imprisonm ent for not more than 10 years or a fine of not more than $100,000.00, or both.

(b) If the violation is committed in the presence of a minor, b y imprisonment for not more than 20 years or a fine of not more than $100,000.00, or both.

(c) If the violation involves th e unlawful generation, treatmen t, storage, or disposal of a hazardous waste, by imprisonment for not more tha n 20 years or a fine of not more than $100,000.00, or both.

(d) If the violation occurs within 500 feet of a residence, bus iness establishment, school property, or church or other house of worship, by impris onment for not more than 20 years or a fine of not more than $100,000.00, or b oth.

(e) If the violation involves t he possession, placement, or use of a firearm or any other device designed or intended to be used to injure another person, by imprisonment for not more than 25 years or a fine of not more t han $100,000.00, or both.

(f) If the violation involves or is intended to involve the man ufacture of a substance described in section 7214(c)( ii ) [methamphetamine], by imprisonment for not more than 20 years or a fine of not more than $25,000.0 0, or both.

Defendant argues that this issue was resolved by this Court in Meshell , 265 Mich App at 628. In Meshell, the defendant was convicted of operating a meth lab and operat ing a meth lab within 500 feet of a residence. Id. at 618. This Court held that the two offenses were the “same offense.” Id. at 628. The Court examined the statutory language and conclud ed (a) that the offense of operating a methamphetamine laboratory did not conta in an element different from operating a methamphetamine labor atory within 500 feet of a res idence, and (b) that the structure of the statute indicates that the Legislature did not intend mu ltiple punishments for these two offenses. Id. at 631. The Court stated, “Given that the elements of operating or maintaining a methamphetamine laboratory are encompassed within the elements of operating or maintaining a methamphetamine laboratory within five hundred feet of a reside nce, the presumption is that the Legislature did not intend multiple punishments.” Id. Regarding the legislative intent, the Court held that MCL 333.7401c(1) provides the base elements of the st atute and that MCL-5- 333.7401c(2)(b-f) provide increase d punishment based on certain aggravating factors (e.g. manufacturing the controlled subs tance in the presence of a min or, § (2)(b), or manufacturing a controlled substance within 500 f eet of a residence, § (2)(d)). Id. at 632.

Contrary to defendant’s argument, Meshell does not control. Instea d, what controls is the Supreme Court’s decision in People v Routley , 485 Mich 1075; 777 NW 2d 160 (2010). In that summary decision, the Court held—while noting the holding in Meshell —that separate convictions under MCL 333.7401c(2)(d) and (f) do not violate do uble jeopardy principles because a conviction under (2)(f ) requires proof that the lab w as used to produce only meth while a conviction under 2(d) does not. Routley , 485 Mich at 1076. Additionally, the Court held that a conviction under 2(d) requires pr oof that the lab was within 50 0 feet of a prohibited structure, while a conviction under 2(f) does not. Id . Because defendant’s convictions were under 2(d) and (f), we must follow the clear enunciation within Routley , and defendant’s argument fails under that decision.

IV. DEFENDANT’S DRUG-TEST REPO RT AND EXPERT TESTIMONY

Defendant independently had a body hair sample tested by Omega Laboratories in Ohio. The test report stated that the sample was “negative” for metha mphetamines within an approximate 12-month timeframe. The sample was reportedly take n from defendant’s chest nine months following defendant’s arr est. The week before trial, th e defense moved for an adjournment because it had been unable to communicate with the analyst at Omega Labs who had analyzed defendant’s hair sample. The trial court denied t he request for an adjournment stating that it could not wait for experts to “get[] around to looking at” dated reports and noting that it was unknown whether the witness would be accepted givenscientific validity and relevancy questions.

The defense was ultimately able to arrange for the analyst to testify by videoconference, but the prosecution asserted tha t the laboratory’s own website stated that body hair testing could not be relied on to give an accurate timeframe of drug use beca use of the variability of body hair growth. The court agreed that th e analyst and his laboratory m et the standards for scientific reliability under MRE 702, but excluded the report and testimon y holding that the body-hair sample was insufficiently relia ble based on the laboratory’s ow n literature regarding body-hair testing. Because of the uncertainty, the court held that the t est results would not be sufficiently probative to rebut Korpela’s tes timony that she and defendant h ad used meth together in December 2012.

“[A] trial court’s decision to admit or exclude expert testimo ny is reviewed for an abuse of discretion.” People v Dobek , 274 Mich App 58, 93; 732 NW2d 546 (2007). An abuse of discretion occurs when the cour t’s ruling falls outside the ran ge of reasonable and principled outcomes. See People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). “An error in the admission or exclusion of evidence will not warrant reversal un less refusal to do so appears inconsistent with substantial justice or affects a substantial right of the opposing party.” Dobek
, 274 Mich App at 93.

Defendant frames the issue in terms of his constitutional righ t to present a defense.-6- The right to present a defense limits the otherwise broad lati tude of states to establish rules that exclude evidence from criminal trials. When rules infringe upon a weighty interest of the ac cused and are arbitrary or dis proportionate to the purposes they are designed to serve, they must yield to the con stitutional right. However, while the right to present a defense is a fundamental part of due process, it is not an absolute right, and the accused must stil l comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. [ People v Kowalski , 492 Mich 106, 139; 821 NW2d 14 (2012) (opinion by M ARY B ETH K ELLY , J.) (citations, internal quotation m arks, and alteration marks omit ted).]

“[E]very proper application of M RE 702 requires a careful consi deration of the reliability of the proffered evidence.” Id. at 140. The right to present a defense is not abridged when t he court excludes unreliable or irrelevant evidence. Id. at 141. Accordingly, if the trial court properly excluded the testimony and lab rep ort, defendant’s right to pre sent a defense was not abridged.

“The trial court has an obligation under MRE 702 ‘to ensure th at any expert testimony admitted at trial is reliable.’ ” Dobek , 274 Mich App at 94, quoting Gilbert v DaimlerChrysler Corp , 470 Mich 749, 780; 685 NW2d 391 (2004). “ Expert testimony ma y be excluded when it is based on assumptions that do not comport with the established f acts or when it is derived from unreliable and untrustworthy scientific data.” Dobek , 274 Mich App at 94 (citation omitted).

[A] court evaluating proposed e xpert testimony must ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2 ) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodolog ies that are applied reliably t o the facts of the case. [ Kowalski , 492 Mich at 120, citing MRE 702.]

“[T]rial courts have an obligation to exercise their discretionas a gatekeeper and ensure that any expert testimony admitted at trial is reliable.” People v Yost , 278 Mich App 341, 394; 749 NW2d 753 (2008) (citation omitted).

Based on the laboratory’s own statement that body-hair testing “cannot be utilized to determine a specific timeframe of drug use,” excluding the repo rt and the expert testimony was not outside the range of reas onable principled outcomes. Babcock , 469 Mich at 269. The laboratory’s website stated that body hair samples can show the presence of drugs for approximately 12 months but cannot provide a specific timeframe because of the variability of body hair growth. Because of this unreliability, a negative te st result would only have been marginally probative of defendant ’s drug use. Further, whetherdefendant used meth in November and December 2012 is not relevant to an element of any of the offenses. The probative value only relates to a potential motive and to Korpe la’s credibility. The trial court did not abuse its discretion.

V. EVIDENCE FOUND IN DEFENDANT’S CELL PHONE

Defendant moved to suppress evidence taken from three cell pho nes that were seized by the police from defendant’s hotel room. Defendant argued that the search warrant did not-7- authorize the police to search t he contents of the phones, but only to search for the phones. The court denied the motion to suppress holding that the warrant, w hich referred to “computer generated data” and “[t]elephone s used to conduct drug transact ions,” covered the contents of defendant’s cell phones.

“A trial court’s ruling on a m otion to suppress evidence is re viewed for clear error, but its conclusions of law are reviewed de novo.” People v Unger , 278 Mich App 210, 243; 749 NW2d 272, 296 (2008). “A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” People v Tuttle , 304 Mich App 72, 80; 850 NW2d 484 (2014) (internal quotation marks omitted).

Defendant did not argue below, and does not argue on appeal, t hat the search warrant was not supported by probable cause. Defendant’s contention is tha t the warrant did not state with particularity that the content s of the cell phone could be sear ched. A search warrant must state with particularity the places to be searched and the persons or things to be seized. Unger , 278 Mich App at 245; US Const, Am IV. “The purpose of the particul arity requirement in the description of items to be seized is to provide reasonable guid ance to the executing officers and to prevent their exercise of undirected discretion in determini ng what is subject to seizure.” Unger , 278 Mich App at 245 (citations omitted).

The United States Supreme Court recently stated, “Our answer t o the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.” Riley v California , __US__, __; 134 S Ct 2473, 2495; 189 L Ed 2d 430 (2014). Defendant argues that Riley requires the police to obtain a warrant that specifically auth orizes a search of the contents of a cell phone. Defendant’s reliance o n Riley is for two reasons misplaced. First, defendant’s mo tel room was not searched inci dent to his arrest, and Riley only holds that the search-incident-to-lawful-arrest exception to th e Fourth Amendment’s warrant requirement does not extend to the contents of a cell phone fou nd on the arrestee

. Riley does not require any greater degree of specificity for the search of a c ell phone than would be required for any other area of privacy protected by the Fourth Amendment. Id. Second, the police had a warrant that authorized them to search for computers, computer generated data, and, notably, “[t]elephones used to conduct drug transactions.” A magistrate issuing such a warrant would reasonably believe that the officers not only intended to seize the phones, but also to search them for evidence. Further, the rele vant images found on defendant’ s cell phone would also fall under the heading of computer-generated data. As the Riley Court pointed out, “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fa ct minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, ta pe recorders, libraries, diari es, albums, televisions, maps, or newspapers.” Riley , 134 S Ct at 2489. Accordingly, the trial court did not err b y admitting evidence found on defendant’s cell phone.

VI. INEFFECTIVE ASSISTANCE

Finally, defendant argues in a catch-all fashion that trial co unsel was ineffective. Defendant has failed to adequate ly brief this issue, providing this Court with no specific information about how counsel’s performance fell below an objec tive standard of reasonableness or how such a failure p rejudiced defendant. Strickland v Washington , 466 US 668, 690; 104 S Ct-8- 2052; 80 L Ed 2d 674 (1984); People v Pickens , 446 Mich 298, 302-303; 521 NW2d 797 (1994). Defendant’s claim is, therefore, abandoned. See Mitcham v Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant in his brie f simply to announce a position or assert an error and then leave it up to this Court to discov er and rationalize the basis for his claims.”).

Affirmed.

/s/ Mark T. Boonstra /s/ Henry William Saad /s/ Christopher M. Murray