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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 19, 2015

v No. 320034 Kalamazoo Circuit Court RYAN CHARLES DIEMOND, LC No. 2013-000101-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

. Defendant, Ryan Charles Diemond, appeals as of right his jury trial conviction for operating or maintaining a meth amphetamine lab, MCL 333.7401c(1 )(a). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a fire resulting from methamphetamine production occurring on January 3, 2013, at an apartment leased in defendant’s name loc ated in Portage, Michigan. John Richard Shank testified that s hortly before January 3, 2013, de fendant called him several times asking him to make methamphetamine. In December 2012, John wen t to defendant’s apartment, used drugs there, and once manufactured methamphetamine there. John’s teenage sons testified that on January 3, 2013, John and his roommate Eric Harris pick ed them up in Harris’s truck in Three Rivers, Michigan, then picked up defendant at a fast food restaurant and they drove to defendant’s apartment. On the way, defendant pulled out a bag of what he said was methamphetamine and he and John discu ssed their plans to make m ethamphetamine.

According to John’s sons 1 , after arriving at defendant’s apartment, Harris and John left to get supplies to make methamphetamine, leaving John’s sons at th e house with defendant, defendant’s wife, and his two children. Defendant and his wife smoked methamphetamine while John and Harris were out. After the two returned, they underto ok to make methamphetamine in the bedroom of defendant’s apartment. One of John’s son’s was in the bedroom during the set

1 John testified that did not remember much about the day of the fire because he had been up for several days and was drinking and detoxing.-2- up process and estimated that defendant was in the bedroom for approximately half the time; defendant kept walking back and forth telling Harris and John t o make sure nothing went wrong. John was trying to open a can of butane with a pair of pliers, and a burning candle was on a table one to two feet away from him. T he butane sprayed all over the room and ignited, causing a fire.

Jeffrey Lehmann, a police officer for the City of Portage, tes tified that he investigated defendant’s apartment after the fire and found evidence of meth amphetamine being made there. Steven Nuyen, a Portage firefighter, testified that the cause o f the fire was a methamphetamine lab explosion. Ron Clark, a police officer for the City of Por tage, testified that he was the second officer on the scene of the fire and that defendant appr oached him and indicated he had burns on his face from the fire. Clark directed defendant to a n ambulance. After approximately 45 minutes to an hour, defendant returned to Clark and describe d his version of the events, including that while he knew John was at his house, he was unaw are that John was making methamphetamine. Clark testified that while speaking with defe ndant on both occasions, he smelled an odor on defendant that is consistent with the manufa cture of methamphetamine. Michael Kline, a road patrol officer and member of the meth res ponse team as well as an evidence technician for the Porta ge Department of Public Safety , testified that he assisted Lehmann at the scene after the fire and found evidence consiste nt with the production of methamphetamine. He also investigated defendant’s history of p seudoephedrine purchases and ascertained that defendant had purchased pseudoephedrine five t imes between October 26, 2012 and December 20, 2012.

Defense counsel argued to the jury that rather than defendant asking John to make methamphetamine in his apartment, John forced his way into the apartment, and that defendant was unaware John was making methamphetamine there. Harris test ified that John acted aggressively and was intimida ting toward defendant on January 3 , 2013. In closing argument, defense counsel contended that defendant was “bullied” into let ting Harris and John into his apartment on the day of the fire.

The jury found defendant guilty of the charge of operating or maintaining a methamphetamine lab. 2

II. OTHER-ACTS EVIDENCE

Defendant argues that he is entitled to a new trial because th e trial court abused its discretion in admitting other-acts evidence regarding his prior requests to make methamphetamine, his prior involvement with John in making meth amphetamine at his house, and his prior use of drugs with John at his house.

2 The jury acquitted defendant of a charge of maintaining a drug house, MCL 333.7405(1)(d).-3- “While a trial court’s decision to admit or exclude evidence i s reviewed for an abuse of discretion, a preliminary or unde rlying issue of law regarding the admissibility of the evidence, such as whether a rule of evid ence bars admission, is reviewed de novo.” People v McDade , 301 Mich App 343, 352; 836 NW2d 266 (2013). Evidence of crimes, wr ongs, or acts “is inadmissible to prove a propensity to commit such acts.” People v Crawford , 458 Mich 376, 383; 582 NW2d 785 (1998), citing MRE 404(b). However, such evi dence may be admissible for other purposes under MRE 404(b)(1). Id. To determine admissibility under MRE 404(b), this Court uses the following standard. First, the evidence must be offered “for a proper purpose under Rule 404(b)[.]” People v VanderVliet , 444 Mich 52, 55; 508 NW2d 114 (1993), amended in part on other grounds 445 Mich 1205 (1994). Second, the evi dence must be relevant under MRE 402. Id. Third, the probative value of the evidence must not be substa ntially outweighed by unfair prejudice. Id. In addition, the prosecution mu st give notice “either in writ ing or orally in open court” before introducing evidence of prior bad acts. People v Johnson , ___ Mich App ___; ___ NW2d ___ (Docket No. 317206, issued January 15, 2015); slip op at 5. The purpose of such notice is threefold:

(1) to force the prosecutor to identify and seek admission only of prior bad acts evidence that passes the relevancy threshold, (2) to ensure tha t the defendant has an opportunity to object to and defend against this sort of evi dence, and (3) to facilitate a thoughtful ruling by the trial court that either a dmits or excludes this evidence and is grounded in an adequate record. [ People v Hawkins , 245 Mich App 439, 454-455; 628 NW2d 105 (2001) (citation omitted).]

A. PRIOR METHAMPHETAMINE PRODUCTION

On the third day of trial, the prosecution moved the trial cou rt to allow John to testify that defendant approached him in December of 2012, about making meth amphetamine and that the two made methamphetamine in defendant’s apartment on another oc casion before the January 3, 2013 incident. Defendant argues that the trial court erred in failing to comply with the notice requirements of MRE 404(b)(2) and that under MRE 404(b)(1),the evidence was inadmissible because its relevance was substantially outweighed by the dange r of unfair prejudice.

As to notice, although the prosecution failed to provide notic e in advance of trial under MRE 404(b)(2), it orally provide d such notice i n open court at trial. See Johnson , ___ Mich App at ___; slip op at 5. We find no abuse of discretion in the tr ial court’s finding good cause to waive the pretrial notice requirement given that the prosecutor only learned of this other-acts evidence that morning when speaking with a witness and had imme diately brought the matter to the attention of defense c ounsel and the trial court. 3

3 The prosecutor indicated that he had not originally planned to call John in his case in chief, but after learning that defendant would probably call John to testi fy, the prosecutor spoke with John and learned of the other acts evidence.-4- We also find no abuse of discre tion in the trial court’s rulin g as to the application of MRE 404(b)(1). Testimony concerning defendant having approached Joh n about making methamphetamine and the fact that John had made the drug in def endant’s apartment previously were properly admitted for the purpose of showing that defendan t had knowledge of John’s intent to make methamphetamine in his apartment on January 3, 2 013. Evidence of prior acts may be admissible to show knowledge, MRE 404(b)(1), and to be c onvicted under MCL 333.7401c(1)(a), defendant must have “know[n] or ha[d] reason t o know” that his apartment was being used to make methamphetamine. Because the prosecution ha d to prove that defendant knew his apartment was being used as a location of methamphetam ine production, defendant’s knowledge that John was a methamphetamine maker (by virtue of t he fact that John previously manufactured methamphetamine at defendant’s apartment) and the fact that defendant had previously asked John to make methamphetamine at his apartment were relevant under MRE 401. See Crawford , 458 Mich at 389; VanderVliet , 444 Mich at 55. Because the prosecution offered this evidence for a proper purpose under MRE 404(b), th e first prong of the VanderVliet standard is satisfied. VanderVliet , 444 Mich at 55.

Even if relevant under MRE 404(b), evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; VanderVliet , 444 Mich at 55, 74-75. Unfair prejudice refers to a situation where “there exists a danger that marginally probative evidence will be given undue or pre-emptive weight by the jury.” People v Mills , 450 Mich 61, 75; 537 NW2d 909 (1995) (quotation omitted). Unfair p rejudice “refers to the tendency of the proposed evidence to adversely affect the objec ting party’s position by injecting considerations extraneous to the merits of the lawsuit . . . .” People v Cameron , 291 Mich App 599, 611; 806 NW2d 371 (2011) (quotation omitted). The evidenc e that defendant previously discussed methamphetamine production with John and that John pr eviously made methamphetamine in defendant’s apartment was highly probative t o show that defendant knew John intended to produce metham phetamine in his apartment on Ja nuary 3, 2013. This evidence did not create a danger of unfair prejudice. The challenged ev idence was closely related to the incident on January 3, 2013, because the prior acts happened in December 2012—close in time to the January 3, 2013 incident—and the challenged evidence was directly related to an element at issue in the case and did not establish the element solely b y way of a forbidden propensity inference. See People v Williams , 240 Mich App 316, 324; 614 NW2d 647 (2000). The high probative value of the challeng ed evidence was not substantiall y outweighed by the danger of unfair prejudice. MRE 403. The t rial court did not abuse its discretion in admitting this evidence. See VanderVliet, 444 Mich at 55; McDade , 301 Mich App at 352.

B. PRIOR DRUG USE WITH JOHN IN DEFENDANT’S APARTMENT

Defendant also challenges John’ s testimony that he and defenda nt used drugs together before January 3, 2013. Defendant argues that the prosecution never gave defendant or the trial court notice that it would e licit this testimony. He did not p reserve this challenge for appeal; therefore our review is for outcome-determinative plain error. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Unlike with the evidence of John ’s previous methamphetamine production at defendant’s apartment, the prosecution did not gi ve any notice of this evidence to defendant. We agree with defendant that the lack of notice as to this testimony was plain error. Hawkins , 245 Mich App at 453. However, given the other evidence in th is case, we conclude that the error was harmless and does not warrant reversal. An error is not grounds for reversal-5- unless, after an examination of the entire cause, it affirmativ ely appears that it is more probable than not that the error was outcome determinative. People v Williams , 483 Mich 226, 243; 769 NW2d 605 (2009). Multiple witnesses testified that they went t o defendant’s apartment on that day for the purpose of manufacturing methamphetamine, and that defendant and John discussed their plans for making the drug. John testified that he had be en to defendant’s apartment on another occasion to manufacture methamphetamine. Finally, poli ce officers and firefighters recovered several components t ypically used for manufacturing m ethamphetamine in defendant’s apartment. Thus, defendant has not shown how this plain error affected his substantial rights as required fo r reversal under plain-error r eview, Carines , 460 Mich at 763- 764, nor has he shown that such error was outcome determinative

. People v Williams , 483 Mich at 243.

III. JURY INSTRUCTIONS

Next, defendant argues that the trial court’s refusal to instr uct the jury as to duress and mere presence rendered him unable to present a proper defense. We review for an abuse of discretion the trial court’s decision regarding the applicabili ty of a jury instruction to the facts of the case. People v Armstrong , 305 Mich App 230, 239; 851 NW2d 856 (2014). “The trial court abuses its discretion when its out come falls outside the range of principled outcomes.” Id.

A. DURESS

“To merit an instruction on the affirmative defense of duress, a defendant must establish a prima facie case of the elements of duress.” People v McKinney , 258 Mich App 157, 164; 670 NW2d 254 (2003). To establish a prime facie case of duress, th e defendant must introduce evidence to allow the jury t o conclude the following:

A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;

B) The conduct in fact caused such fear of death or serious bod ily harm in the mind of the defendant;

C) The fear or duress was operating upon the mind of the defend ant at the time of the alleged act; and

D) The defendant committed the act to avoid the threatened harm . [ People v Lemons , 454 Mich 234, 246-247; 562 NW2d 447 (1997).]

Where the defendant denies committing the crime at issue, the f acts are legally insufficient to require a jury instruction on duress. Id. at 249, 251. Because defendant failed to present any evidence that he committed the offense, instead choosing to den y any involvement in the offense, he was not entitled to have the jury instructed on the affirmat ive defense of duress. Id .; McKinney , 258 Mich App at 164-165. Furthermore, no evidence was presen ted at trial to establish that any threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bod ily harm. Therefore, the trial court did not abuse its discretion in refusing to instruct the jury on duress. See Armstrong , 305 Mich App at 239.-6- B. MERE PRESENCE

The model jury instruction regard ing mere presence states as f ollows: “Even if the defendant knew that the alleged crime was planned or was being committed, the mere fact that [he / she] was present when it was committed is not enough to p rove that [he / she] assisted in committing it.” M Crim JI 8.5. The plain language of this ins truction clearly indicates that it is appropriate where the prosecution premises a defendant’s guilt on the theory that the defendant aided and abetted in the commission of a crime. See People v Head , 211 Mich App 205, 211- 212; 535 NW2d 563 (1995). Here, the prosecution did not presen t a theory of aiding and abetting, and the trial court did not abuse its discretion in failing to provide the instruction. See Armstrong , 305 Mich App at 239. Furthermore, as the prosecution points out, the instruction is legally at odds with the elements of the crime charged. Defend ant’s convicted offense under 333.7401c(1)(a) requires that a defe ndant know or have reason t o know that the place he or she owns or possesses is to be used as a location to manufacture a controlled substance. It does not require that the defendant assist in the process.

Affirmed.

/s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro