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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN

,

Plaintiff-Appellee, UNPUBLISHED May 16, 2017

v No. 332956
Luce Circuit Court KAY MARGARET OBERLE, LC No. 15-001257-FH

Defendant-Appellant.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

.

Defendant was convicted following a jury trial of conspiracy t o operate or maintain a methamphetamine laboratory, MCL 333.7401c(2)(f), MCL 750.157a; operating or maintaining a methamphetamine laboratory, MCL 333.7401c(2)(f); owning a build ing intended to be used as a location to manufacture methamphetamine, MCL 333.7401c(1)(a); p ossession of methamphetamines, MCL 333.7403(2)(b)( i ); and delivery or possession of methamphetamines near a park, MCL 333.7410a. The c ircuit court sentenced defend ant as a second habitual offender, MCL 333.7413, to serve 66 to 240 months for the consp iracy conviction, the operating or maintaining a methamphetamine lab conviction, the owning a b uilding used to operate or maintain a methamphetamine lab conviction, and the possession o f methamphetamine conviction, and to 12 months for t he delivery or possession of methamphetamine near a park
conviction. We affirm.

I. PROSECUTORIAL MISCONDUCT

Defendant argues that she was denied a fair trial based on ina dmissible, inflammatory arguments made by the prosecutor during his opening statement. The prosecutor described methamphetamine (meth) as a “terrible drug” that was “highly ad dictive,” “extremely poisonous,” “very dangerous” to ingest and to make, and “very c heap” to make. According to defendant, this was improper because the irrelevant statements were designed to appeal to the jury’s sense of “civic duty,” and to their fears and prejudices about meth. They were, according to defendant, designed to divert the jury from its duty to deci de the case based on the evidence by injecting issues broader tha n the guilt or innocence of the accused. See People v Farrar , 36 Mich App 294, 299; 193 NW2d 363 (1971). Given the evidence sub sequently adduced at trial, the prosecutor’s statements were permissible commentary. See People v Lane , 308 Mich App 38, 63; 862 NW2d 446 (2014) (“During opening statements, a pros ecutor may state the facts that-2- will be proved at trial. A prosecutor may not offer his or her personal belief about the defendant’s guilt, but may summarize what he or she thinks the evidence will show.”) (citations and quotation marks omitted); People v Bahoda , 448 Mich 261, 282; 531 NW2d 659 (1995) (holding that prosecutors are free to argue the facts in eviden ce and the reasonable inferences arising from those facts).

Our Supreme Court has stated that “prosecutors should not reso rt to civic duty arguments that appeal to the fears and prejudices of jury members or expr ess their personal opinion of a defendant’s guilt, and must refrain from denigrating a defendan t with intemperate and prejudicial
remarks.” Bahoda, 448 Mich at 282-283. “Generally, [ however,] [p]rosecutors are accorded great latitude regarding their arguments and conduct” and are “ free to argue the evidence and all reasonable inferences from the evidence as it relates to [their ] theory of the case.” Id. at 282 (citations and quotation marks omitted; second and third altera tions in original). Similarly, prosecutors may summarize anticipated evidence. Lane , 308 Mich App at 63. The prosecutor’s
statements foreshadowed the evi dence presented, and thus were n ot improper.

There was ample evidence presen ted at trial to support the com ments about meth made during the prosecutor’s opening statement. A Michigan State Po lice trooper testified about the “ingredients” required to make meth, and the dangers inherent i n that process. Other officers experienced in narcotics law enforcement described meth as “ver y” or “highly” addictive, while both Joseph and Pamela Pethers testified that they were addicte d to meth. This testimony established not only that the p rocess of manufacturing meth was dangerous, but that the ingredients used to make it were quite toxic, and that the fini shed product was highly addictive. The prosecutor’s comments that meth was “highly addictive,” dan gerous, and “terrible” presaged the trial testimony, and was not improper. There was no plain error requiring reversal. Bahoda, 448 Mich at 282; Lane , 308 Mich App at 62-63.

II. INEFFECTIVE ASSISTANCE AND PROSECUTORIAL MISCONDUCT

Defendant argues that defense c ounsel provided ineffective ass istance by introducing evidence that defendant was previously in jail, and by failing to object to the prosecutor’s questions on the topic of defendant’s previous arrest and consu mption of alcohol. Although defendant’s argument that the prosecutor improperly questioned a witness about her previous arrest has merit, defendant was not denied a fair trial on this basis, and is not ent itled to reversal.

A. JAIL

Defendant argues first that defense counsel was ineffective fo r introducing evidence during her boyfriend’s direct exa mination that defendant was pr eviously in jail. Specifically, in response to defense counsel’s q uestion, “How do you know [defen dant]?”, the witness responded
that he had first called defendant after a friend had told him “that she . . . was in jail, . . . and she needed somebody to talk to.” Defendant argues that this testim ony demonstrates that defense counsel did not adequately investigate the witness and should h ave known how his relationship with defendant began.

The accused has the right under the federal and state Constitut ions to the effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 2 0; Strickland v Washington , 466-3- US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant bear s a heavy burden to show that
counsel made errors so serious t hat she was not performing as t he counsel guaranteed by the Sixth Amendment, and the defendant must overcome a strong presu mption that counsel’s performance constituted sound trial strategy. People v Dixon , 263 Mich App 393, 396; 688 NW2d 308 (2004). To prevail on an ineffective assistance of co unsel claim, a defendant must meet two criteria: first, she must “show that counsel’s perform ance was deficient. This requires showing that counsel made errors so serious that counsel was no t functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland , 466 US at 687. Second, the defendant must show the deficient performance was prejudicial. Id . Prejudice i s established where there is a reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. Id . at 694; People v LaVearn , 448 Mich 207, 216; 528 NW2d 721 (1995).

Although defendant argues that trial counsel should have known that the witness first met defendant when she was in jail, we note that the witness testif ied on cross-examination that he met defendant “when she got out o f jail,” which indicates that defendant was not incarcerated when they met. Thus, although defense counsel may have known that the witness and defendant first met close in time to when defendant was in jail, she coul d not have necessarily anticipated that the boyfriend would respond to her question, “How do you k now her?” by referencing defendant’s time in jail, rathe r than by simply stating that th ey were in a dati ng relationship.

We also note that the purpose in calling the witness was to sh ow that the boyfriend saw defendant on a regular basis, and that defendant had not appear ed to have used meth on any of the days they were together. D efense counsel also established through the witness that defendant had purchased Sudafed for him as treatment for his allergies, s uggesting the purchase was not for use as an ingredient in meth. “Decisions regarding what eviden ce to present, whether to call witnesses, and how to question witnesses are presumed to be mat ters of trial strategy,” People v

Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008), and “this Court wil l not substitute its judgment for that of counsel rega rding matters of trial strateg y,” People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). Defense counsel was not ineffect ive on the basis of this testimony.

Similarly, we are not persuaded that the prosecutor acted impr operly by mentioning defendant’s time in jail during cross-examination of the witnes s. Issues of “prosecutorial misconduct are considered on a case-by-case basis . . . in cont ext” to determine whether the “defendant was denied a fair and impartial trial.” People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). Here, the prosecutor merely repeated the witn ess’s testimony from the direct examination when he asked him to clarify that he had met defend ant “after she got out of jail.” The prosecutor did not ask why defendant had been in jail or co mment further on this topic. Based on this very limited exchange, no error resulting in a mi scarriage of justice occurred. See People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008).

B. PRIOR ARREST

Defendant also argues that defense counsel was ineffective for failing to object to the prosecutor’s questions concerning her previous arrest during cr oss-examination of defendant’s boyfriend. We recognize that def ense counsel may have intentio nally chosen not to object so as-4- not to call attention to an issue that may have negatively affe cted the jury’s view of defendant. However, even if she should have objected or requested a curati ve instruction, defendant has not
shown that the error affected the outcome of her case. LaVearn

, 448 Mich at 216. Other evidence properly introduced at trial, including the incriminat ing testimony of the Pethers and defendant’s daughter, provided su fficient evidence to show that defendant had possession of
meth and that she allowed it to be manufactured in her home. T he unchallenged testimony about defendant’s previous arrest di d not likely affect the outcome o f the case. Id.

Nor has defendant shown that the prosecutor committed error re quiring reversal by introducing evidence of her prior arrest. The prosecutor initi ally confirmed the boyfriend’s prior testimony that he had “met [defend ant] after she got out of jai l.” The prosecutor then asked him if he was with defendant “when she was arrested,” presumably re ferring to her arrest for the current offense, and the witness responded “not this time.” Th e prosecutor later asked whether “there [had] been a time in the past when [defendant] was arres ted in your residence.” Although this Court has held that prosecutors have a special obligation to avoid areas of testimony that may unfairly prejudice a defendant, People v McCarver (On Remand) , 87 Mich App 12, 15; 273 NW2d 570 (1978), an isolated or inadvertent reference to a defe ndant’s prior criminal activities will not warrant reversal, People v Wallen , 47 Mich App 612, 613; 209 NW2d 608 (1973). However, we agree that the pros ecutor should not have asked whe ther “there [had] been a time in the past when [defendant] was arrested in your residence” because it po tentially referenced prior bad acts. See MRE 404(b). Howev er, there is no indication tha t the error affected defendant’s substantial rights. Sufficient evidence was presented at trial to establish that defendant had possession of meth and allowed the Pethers to make it in her ho me. Defendant has not shown that the prosecutor’s improper que stion affected the integrity of the proceedings or that she was actually innocent and the prosecutor’s error caused her to be c onvicted. People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004).

We likewise reject defendant’s argument that the court committ ed error requiring reversal by allowing the witness to be cross-examined “about arrests not resulting in c onviction or about the length and detail of any sentence as a result of earlier co nvictions,” citing People v Rappuhn

, 390 Mich 266; 212 NW2d 205 (1973). Defendant’s reliance on Rappuhn is misplaced. In Rappuhn , our Supreme Court stated that “ ‘in the examination or cross- examination of any witness, no inquiry may be made regarding prior arrests or charges agai nst such witness which did not result in conviction; ne ither may such witness be exami ned with reference to higher original charges which have not r esulted in conviction, whether by plea or trial.’ ” Id . at 270, quoting People v Falkner , 389 Mich 682, 695; 209 NW2d 193 (1973) ( emphasis in original) The Rappuhn Court held that the defendant had been prejudiced by the refer ence to his arrest record, stating that “ Falkner clearly speaks to the impeachme nt of any witness by use of an arrest record. Therefore, defendant is entitled to a new trial on the basis of Falkner .” Rappuhn , 390 Mich at

270-271. Rappuhn is not applicable to the instant case because the record does n ot indicate that the prosecutor elicited testimony about defendant’s previous arrest to impeach her credibility or that of the witness. Further, Rappuhn prohibits counsel from making any “inquiry . . . regarding prior arrests or charges against such witness which did not res ult in conviction[.]” Id

. at 270 (citation and quotation marks omitted). Defendant does not cla im that her prior arrest did not lead to charges resulting in c onviction and thus, it is not cle ar that the comment would have been prohibited under Rappuhn . But even if it did not resul t in conviction, again, the erro r did not-5- affect the integrity of the proceedings or affect the fairness of the trial, and does not require
reversal. Thomas, 260 Mich App at 454.

C. “DRINKING”

Next, defendant argues that defense counsel should have object ed during the prosecutor’s cross-examination of her boyfriend when he was asked whether de fendant was drinking at the
time of her arrest. Defendant does not explain why counsel sho uld have objected to these questions. However, we presume she believes that this line of questioning was potentially prejudicial or portrayed her in a bad light. Such an argument is not persuasive evidence that
defense counsel was ineffective because defendant has not shown that the outcome of her case
would have been different if c ounsel had objected. Defendant h as not asserted that it would have been illegal for her to consume alcohol. In addition, no evide nce that defendant drank alcohol was actually admitted as a result of the witness’s testimony be cause he categorically denied that defendant was drinking at any time in his presence or that they ever drank together. We do not agree that defense counsel was ineffective for failing to objec t to the prosecutor’s questions, but to the extent that there was any error, defendant has not shown that it affected the outcome of her

case. LaVearn, 448 Mich at 216.

We agree with defendant, however, that the prosecutor improper ly questioned the witness regarding whether she was drinki ng at the time of her arrest. Defendant was not charged with any alcohol-related offenses, and no evidence was offered to sh ow that, for instance, she was
under the influence of alcohol dur ing the commission of the off enses or that consumption of alcohol otherwise figured in the commission of the offenses. T hus, the prosecutor delved into an irrelevant area. See MRE 401 and 402. However, as discussed, defendant has not argued that it would have been improper or illeg al for her to consume alcohol for any reason, and the prosecutor did not suggest that defendant would have been break ing the law by drinking. Additionally, as noted, the witness testified that he did not s ee defendant drinking at any time.
Because defendant cannot show tha t she was denied a fair trial based on the prosecutor’s questions, she is not entitled t o a new trial on this basis.

III. OV 14

Defendant argues that the trial court improperly assessed 10 p oints for offense variable (OV) 14, MCL 777.44, because the evidence did not support a fin ding that she was a leader in the commission of the offenses. Ten points may be assessed for OV 14 where “[t]he offender was a leader in a multiple offender situation.” MCL 777.44(1)( a). “The entire criminal transaction should be considered when scoring this variable,” a nd where “3 or more offenders were involved, more than 1 offender may be determined to have b een a leader.” MCL 777.44(2)(a) and (b). The trial court assessed 10 points for O V 14, over defendant’s objection, based on its finding that defendant “was certainly a willing pa rticipa[nt]” who provided money to the Pethers to purchase Sudafed and other materials, allowed he r house to be used to manufacture meth, and who “solicited her daughter to purchase S udafed.” The court acknowledged that others may have played an even greater role i n carrying out the offense, but
determined that it was still appropriate to assess 10 points ba sed on defendant’s rol e. We agree.-6- The statute does not define the term “leader,” so we may deter mine the common meaning of the term from the dictionary. Ter Beek v City of Wyoming , 495 Mich 1, 20; 846 NW2d 531 (2014)

. One common definition of a “leader” is “[o]ne that leads or gu ides.” The American Heritage Dictionary of the English Language (2000). Under the statute, more than one offender may be found to be a leader when the offense involves three or more offenders. Thus, as the court noted, while Joseph Pethers may have played the greatest role in manufacturi ng the meth, it was still appropriate to assess 10 points for defendant’s role in the offense because the evidence supported a finding that she all owed her home to be used as a m eth lab, she paid for the materials for one of the meth “cooks,” and she solicited her daughter to obtain a necessary ingredient,
actions that could be construed as “leading” or “guiding” the c reation of a meth lab. We are not persuaded by defendant’s argument that the court’s score was no t appropriate because she “did not know much of anything about methamphetamine.” Although def endant may not have possessed the technical knowledge used by Joseph Pethers to act ually make the meth, the court’s finding that she had a leadership role in the manufacturing pro cess in other ways was supported by a preponderance of the evidence.

Defendant argues that the court sh ould not have considered test imony that she solicited her daughter to buy Sudafed to determine whether she played a l eadership role, based on People v Rhodes (On Remand) , 305 Mich App 85; 849 NW2d 417 (2014). In Rhodes , this Court concluded that the defendant, who had been convicted of assault with intent to commit great bodily harm, was not a leader in the offense because “the evide nce does not show that defendant acted first, gave any directions or orders to” the other offend er, “displayed any greater amount of initiative beyond” his possession of a firearm, “played a preci pitating role in [the other offender’s] participation in the criminal transaction, or was o therwise a primary causal or coordinating agent.” Rhodes, 305 Mich App at 87, 90. The Court also determined that the onl y evidence of the defendant’s leadership role was that he had pos sessed a gun during the
commission of the offense and the other offender had not. Ther efore, the Court concluded that the record did not support the tr ial court’s finding that the d efendant was a leader pursuant to OV

14. Id. at 90. By contrast, evidence that defendant asked her daughte r to buy Sudafed, in
combination with other eviden ce, does support a finding that de fendant was a leader. Based on the definition of “leader,” it was not error for the trial cour t to find that defendant helped to lead or guide by asking her daughter to purchase Sudafed, as well as by purchasing Sudafed herself, paying for other materials, and allowing her home to be used as a meth lab. Defendant “directed” her daughter to purch ase Sudafed, and arguably displ ayed initiative by doing so. See

Rhodes

, 305 Mich App at 90. The trial cou rt did not err by concluding that the preponderance of the evidence, including evidence that defendant directed her da ughter to purchase Sudafed, supported a finding that OV 14 s hould be scored at 10 points.

IV. DOUBLE JEOPARDY

Following trial, defendant filed a motion for judgment notwith standing the verdict (JNOV), in which she argued that she was being “punished more t han once for the same act,” in violation of her protection ag ainst double jeopardy, because “t he factual basis for all of the Counts is . . . the same.” Specifically, defendant contended t hat count III (owning a building intended to be used as a location to manufacture methamphetamin e, MCL 333.7401c(1)(a)) and count V (delivery or possession of a controlled substance withi n 1000 feet of a park, MCL 333.7410a) should be dismissed because count III was a lesser i ncluded offense of count I-7- (conspiracy to operate or maintain a laboratory involving metha mphetamine, MCL 333.7401c(2)(f); MCL 750.157a), and count II (operating or main taining a laboratory involving methamphetamine; MCL 333.7401c(2)(f)), and count IV (possessionof a controlled substance, MCL 333.7403(2)(b)( i )). Additionally, defendant argued that count V was a “cognate lesser offense to count III,” and that both counts were “cognate lesse r offenses to Counts 1, 2, and 3.” According to defendant, count V violated double jeopardy with r espect to her other convictions “because the same factual basis underpins . . . all of the offe nses.” The court denied defendant’s motion without explanation.

On appeal, defendant renews her assertion that she is entitled to dismissal of two of her convictions, relying on her moti on for JNOV rather than providi ng an argument in support of this statement. Defendant has, thus, abandoned this argument. People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998); People v Harris , 261 Mich App 44, 50; 680 NW2d 17 (2004). We conclude, however, that the trial court did not err by denyi ng defendant’s motion for JNOV
and that her constitutional ri ghts against double jeopardy were not violated.

“Both the United States and Michigan constitutions prohibit a person from twice being placed in jeopardy for the same offense.” People v Ford , 262 Mich App 443, 447; 687 NW2d 119 (2004), citing US Const, Am V and Const 1963, art 1, § 15. In Ford , this Court explained that “[b]oth federal and Michig an double jeopardy provisions af ford three related protections: (1) against a second prosecution for the same offense after acquitt al, (2) against a second prosecution for the same offense after conviction, and (3) agai nst multiple punishments for the
same offense.” Ford, at 447. At issue in this case is the third category of double jeopardy protection.

“[T]he purpose of the double je opardy protectio n against multi ple punishments for the same offense is to protect the defendant from having more punis hment imposed than the Legislature intended.” Id

. at 447-448. However, “[t]he Doubl e Jeopardy Clause acts as a restraint on the prosecutor and the courts, not the Legislature .” Id. at 448, citing Brown v Ohio

, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977) (citation omitt ed). Thus, “the Double Jeopardy Clause does not limit the Legislature’s ability to def ine criminal offenses and establish punishments . . . .” Id. (citations omitted).

Whether the Legislature intended to impose multiple punishment s for violations of more than one statute during the same transaction or incident is gen erally determined by the application of the Blockburger 1 or “same-elements” test. See United States v Dixon , 509 US 688, 696; 113 S Ct 2849; 125 L Ed 2d 556 (1993); People v Denio , 454 Mich 691, 707; 564 NW2d 13 (1997). In general, the Blockburger test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Ford, 262 Mich App at 448 (citation and quotation marks omitted)

. The offenses for which defendant was convicted do not contain
identical elements.

1 Blockburger v United States , 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).-8- MCL 333.7401c(1)(a) prohibits a person from owning, possessing , or using a structure that he or she knows is to be used to manufacture a controlled substance, while MCL 333.7401c(1)(b) prohibits a person from owning or possessing any chemical or laboratory equipment that he or she knows is to be u sed to manufacture a controlled substance. Although the language of the two provisi ons is similar, subdivision (a) required the prosecution to prove that defendant owned the house in which the methamphetamine was manufactured, while subdivision (b) required the prosecution to prove that she owne d the chemicals and equipment apparently found in the house. To establish that defendant vio lated MCL 333.7410a, the prosecution had to show that defe ndant operated a meth lab with in 1000 feet of a public park; only the element of possession is shared with the offenses aris ing under MCL 333.7401c(1)(a) and (b), which is itself one of three alternative elements list ed in those subsections (i.e., “owning,” “possessing,” or “using”). In Ford , this Court held that “[e]ven where the same facts in a single trial show the commission of each [offense,] the fe deral Double Jeopardy Clause is
not offended.” Ford, 262 Mich App at 458. Defendant’s convictions and sentences did not violate the same-elements test because the offenses arising und er each statutory provision required the prosecution to prove a n element that the other sub division or statute did not.

Affirmed.

/s/ David H. Sawyer /s/ Christopher M. Murray
/s/ Elizabeth L. Gleicher