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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 24, 2015

v No. 322850 Eaton Circuit Court THOMAS CLAUD KERN, LC No. 13-020378-FH

Defendant-Appellant.

Before: M ETER , P.J., and B ORRELLO and B ECKERING , JJ.

P ER C URIAM

. Defendant, Thomas Kern, appeals as of right from his convictio n following a jury trial of operating or maintaining a labor atory involving methamphetamine , MCL 333.7401c(1) and MCL 333.7401c(2)(f), and possession of methamphetamine, MCL 333.7403(2)(b)( i ). The trial court sentenced defendant as a fourth-offense habitual offender , MCL 769.12, to 10 to 30 years’ imprisonment for each offense. We affirm.

On July 3, 2013, police conducted a search of defendant’s hous e 1 in response to a call from his niece regarding items she found at the residence. Def endant was incarcerated at the time the search was conducted, having been arrested on June 30, 2013 on an unrelated matter. During the course of the search, police found a coffee bean gri nder with white residue in it, coffee filters, table salt, cold packs, a funnel with white res idue on it, a lithium battery casing, an empty box of decongestant, packaging for generic Sudafed, Colem an fuel, a hypodermic needle, various plastic bottles, a bottle of lye, and two bottles of su lfuric acid—all items used in the production of methamphetamine.

1 The home belonged to one of defendant’s relatives, but several witnesses testified—and defendant told police officers dur ing an interview—that defenda nt was living at the house at the time of the search.-2- Defendant’s brother testified at trial and recalled several in stances in the past when defendant confessed to using methamphetamine and to being “ente rtained by the process of making” the drug. On or about July 6, 2013, Eaton County Sheri ff’s Office Deputy Robert Gillentine interviewed defendant and confronted him about the m ethamphetamine-related items found in the house. Defendant denied that the products were hi s, blaming acquaintances to whom he had given access to the house. He admitted, however, t hat he used three grams of methamphetamine per day, a quantity which Gillentine described as “a lot.” Defendant told Gillentine that he “had a pretty good idea” about how to make m ethamphetamine and that he tried to make it on one occasion; however, he lacked the patien ce to make the drug. Defendant told Gillentine that other people had manufactured methamphetam ine in his house on several occasions, the most recent of which was approximately three wee ks before his arrest. He also told Gillentine that he could obtain boxes of Sudafed and that he would trade the Sudafed for methamphetamine. In the months leading up to the search of the house, defendant attempted to purchase a quantity of Sudafed that would have put him beyond t he limit a person can legally purchase within a 30-day period; this purchase was denied by th e retailer.

Defendant argues that there was insufficient evidence to suppo rt his convictions. This Court reviews de novo a claim of insufficiency of the evidence. People v Hawkins , 245 Mich App 439, 457; 628 NW2d 105 (2001). “ [W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the e vidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Wolfe , 440 Mich 508, 515-516; 489 NW2d 748, amended on other grounds 441 M ich 1201 (1992). “The question is whether the evidence presented at trial, together w ith all reasonable inferences arising therefrom, was sufficient to allow a rational trier of fact to find each element of the crime proven beyond a reasonable doubt.” People v DeLisle , 202 Mich App 658, 660; 509 NW2d 885 (1993). “It is for the trier of fact, not the appellate court, to deter mine what inferences may be fairly drawn from the evidence and to determine the weight to be accor ded those inferences,” People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002), as well as to make de terminations regarding issues of credibility, Wolfe , 440 Mich at 515. “ ‘Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.’ ” People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999), quoting People v Allen , 201 Mich App 98, 100; 505 NW2d 869 (1993).

Defendant was convicted of opera ting or maintaining a laborato ry involving methamphetamine and possession of methamphetamine. MCL 333.740 1c(1) provides as follows:

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 locati on to manufacture a controlled substance in viola tion of section 7401 or a counterf eit substance or a controlled substance analogue in violation of section 7402.

(b) Own or possess any chemical or any laboratory equipment th at he or she knows or has reason to know is to be used for the purpose o f manufacturing a-3- controlled substance in viola tion of section 7401 or a counterf eit substance or a controlled substance analogue in violation of section 7402.

Defendant’s jury was instructed c onsistent with both of these a lternative subsections under the
statute.

As to MCL 333.7401c(1)(a), defendant’s statements established that he possessed and used the house in question as a residence. Furthermore, defend ant’s niece and brother also testified that the house was de fendant’s residence, and police found mail addressed to defendant in the house.

Whether defendant knew or had reason to know that the house wa s being used as a location for the manufacture of methamphetamine is also support ed by the evidence. There was evidence that methamphetamine was being manufactured in house, as police testified that they found ingredients and materials used in the process of manufact uring methamphetamine, and substances collected from the house tested positive for the pre sence of methamphetamine. Defendant freely admitted to using methamphetamine and told Gil lentine that someone had made the drug in the house as recently as three weeks before the sea rch. Defendant was also aware of the manufacturing process and admitted to obtaining Sudafed, wh ich he sometimes traded for methamphetamine. Furthermore, he specifically identified that an acquaintance, a known methamphetamine “cook,” had access to his home and had cooked m ethamphetamine there before. This evidence suppor ts conviction under MCL 333.7401c( a).

Moreover, there was also sufficient evidence to support a conv iction under MCL 333.7401c(1)(b), the alternative the ory on which the jury was i nstructed. Regarding his possession of the chemicals and laboratory equipment, defendant argues there is no evidence to support a finding of possession because he could not have had p ossession or control over them due to his incarceration. However , the evidence shows that he was in constructive possession of the chemicals and equipment. Possession is established by show ing “dominion or right of control over the drug with knowle dge of its presence and charac ter.” People v McKinney , 258 Mich App 157, 165; 670 NW2d 254 (2003) (citations and quotation marks omitted). “[C]onstructive possession exists when the totality of the circ umstances indicates a sufficient nexus between the defendant and the contraband.” Wolfe , 440 Mich at 521. A jury may infer, based on circumstantial evidence, that a defendant had knowledg e of the presence of contraband. People v Meshell , 265 Mich App 616, 622; 696 NW2d 754 (2005). “The ultimate qu estion is whether, viewing the evidence in a light most favorable to the government, the evidence establishes a sufficient connection between the defendant and t he contraband to support the inference that the defendant exe rcised a dominion and control o ver the substance.” Wolfe , 440 Mich at 521 (citation and quotation marks omitted).-4- There was sufficient evidence for a rational jury to find that defendant constructively possessed the manufacturing equipment. 2 Defendant’s statements, t he testimony of his brother and niece, and the mail addressed to him found in the house est ablish a nexus between defendant and the house. Police officers found all of the requisite chem icals for manufacturing methamphetamine in the house, as well as two “one-pot” methamph etamine laboratories. Defendant was well aware of the activity that went on inside th e house, admitting he knew about the methamphetamine manufacturing process, was acquainted with different “cooks,” knew that methamphetamine had been produced in the house on different occ asions, and that he had a regular habit of using the drug. Defendant also admitted to ob taining Sudafed, one of the key components in making the drug. Taken in its totality, and in a light most favorable to the prosecution, this evidence was sufficient for a rational jury t o find that defendant exercised dominion and control over the laboratory equipment, even though he was arrested shortly before the police found the equipment.

In passing, defendant argues th at the evidence was insufficien t because the date listed on the information alleged that the offenses occurred on or about July 3, 2013. Because he was incarcerated on this date, defendant argues that he could not h ave committed the offenses as charged and that the jury coul d not have found sufficient evide nce of his guilt.

We find no merit in defendant’s argument. “An information is required to contain the ‘time of the offense as near as ma y be’; however, ‘[n]o varianc e as to time shall be fatal unless time is of the essence of the offense.’ ” People v Dobek , 274 Mich App 58, 82-83; 732 NW2d 546 (2007), quoting MCL 767.45(1)(b). In regard to the time of the alleged offense, MCL 767.51 provides:

Except insofar as time is an element of the offense charged, an y allegation of the time of the commission of the offense, whether stated absolutel y or under a videlicet, shall be sufficient to sustain proof of the charge a t any time before or after the date or dates allege d, prior to the finding of the in dictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion requ ire the prosecution to state t he time or identify the occasion as nearly as the circumstances will permit, to ena ble the accused to meet the charge.

In addition, MCR 6.112(G) provides:

Absent a timely objection and a showing of prejudice, a court m ay not dismiss an information or reverse a conviction because of . . . a variance between the information and proof regarding time, place, the manner in whic h the offense was committed, or other factual detail relating to the alleged offe nse.

2 In addition, although defendant does not directly challenge hi s possession conviction, we find, for many of the reasons stated above, that there was sufficient evidence for a rational jury to find that he constructively possessed methamphetamine as well.-5- There is nothing to indicate that time was of the essence to d efendant’s convictions; thus, the date listed on the information was not restrictive. Moreov er, and contrary to defendant’s contentions, the evidence was sufficient for a rational jury to find that he constructively possessed the home and the methamphetamine laboratories even th ough he was incarcerated at the time police searched the home. Indeed, as noted above, the re was evidence that defendant exercised dominion and control over both the premises and the c ontraband even though he was detained at the time the c ontraband was discovered.

Affirmed.

/s/ Patrick M. Meter /s/ Stephen L. Borrello /s/ Jane M. Beckering