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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 14, 2015 

v No. 321038 

Huron Circuit Court 

JEFFREY MICHAEL HATCH, LC No. 13-305716-FH 

 Defendant-Appellant. 

Before: HOEKSTRA, P.J., and JANSEN and METER, JJ. 

PER CURIAM. 

 Following a jury trial, defendant appeals by right from his conviction of possession with 

intent to deliver less than 50 grams of a controlled substance (heroin), MCL 333.7401(2)(a)(iv), 

second or subsequent offense, MCL 333.7413(2). For the reasons explained in this opinion, we 

affirm. 

 Defendant’s conviction arises from his possession with intent to deliver a total of 

approximately 22 grams of heroin, which was found in defendant’s home. A small packet of 

heroin was found near defendant’s bed while the majority of the heroin was found inside a video 

cassette recorder (VCR) sitting on a shelf in defendant’s bedroom closet. The heroin was found 

pursuant to two search warrants executed on June 26 and 27, 2013. At trial, evidence was 

presented surrounding the decision to search defendant’s home, as well as defendant’s 

interaction with his accomplice, Rollie Smith, Jr., concerning the pair’s broader distribution 

activities and Smith’s past purchase of heroin from defendant. Testimony was also presented by 

Tracy Champagne, a police informant who purchased heroin, or substances purported to be 

heroin, from Smith and defendant in a number of controlled purchases using marked bills. Some 

of these marked billed were later found in defendant’s home. In an interview with police, 

defendant eventually admitted that he sold heroin to support his own heroin addiction. The jury 

convicted defendant as noted above.1

 Defendant now appeals as of right. 

 

1

 At trial, defendant was found not guilty of delivery of an imitation controlled substance in a 

related lower court file. 
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 On appeal, relying on MRE 404(b), defendant first argues that evidence of his prior bad 

acts should not have been presented to the jury. In particular, defendant asserts the jury should 

not have been made aware of his numerous previous drug sales to Champagne and Smith, 

evidence that Champagne and Smith had accompanied defendant on drug buys, and testimony 

regarding a 2009 occurrence in which packaged heroin was found in a car in which defendant 

was a passenger. 

 This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of 

discretion. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). A trial court abuses its 

discretion when its decision is outside the range of principled outcomes. People v Feezel, 486 

Mich 184, 192; 783 NW2d 67 (2010). A preserved evidentiary error will not merit reversal in a 

criminal case unless, after an examination of the entire cause, it affirmatively appears that it is 

more probable than not that the error was outcome determinative. Burns, 494 Mich at 110. 

 MRE 404(b)(1) provides: 

 Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, 

or absence of mistake or accident when the same is material, whether such other 

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the 

conduct at issue in the case. 

To be admissible under 404(b), prior acts evidence must (1) be offered for something other than 

proving character or propensity, (2) be relevant, and (3) not have a probative value that is 

substantially outweighed by the potential for unfair prejudice. People v Knox, 469 Mich 502, 

509; 674 NW2d 366 (2004). The trial court may also, upon request, provide a limiting 

instruction regarding prior bad acts evidence pursuant to MRE 105. Id. 

 In this case, the prosecution sought to introduce the evidence “to prove knowledge, 

intent, plan, system of doing an act, or lack of mistake or accident.” Knowing possession with 

intent to deliver is an element of the crime of possession with intent to deliver. People v Wolfe, 

440 Mich 508, 516-517, 519; 489 NW2d 748 (1992), amended on other grounds 441 Mich 1201 

(1992). By pleading not guilty, defendant placed all elements of the offense “at issue,” including 

the question of his intent to distribute and his knowledge of the substance. See People v 

Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998). Further, testimony regarding prior drug 

sales and prior possession of packaged heroin was logically relevant to show intent to distribute 

as well as an absence of mistake. MRE 404(b)(1). See People v McGhee, 268 Mich App 600, 

610-612; 709 NW2d 595 (2005). Given the pattern of repeated drug sales, this evidence also 

tended to establish that the charged acts were part of characteristic “scheme, plan, or system in 

doing an act.” MRE 404(b)(1). And, although there was a danger that the jury might use this 

evidence for an improper propensity purpose, the danger did not substantially outweigh the 

significant probative value of the evidence, id. at 614, particularly in light of the following 

limiting instruction, which the jury is presumed to have followed, People v Graves, 458 Mich 

476, 486; 581 NW2d 229 (1998): 
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 You have heard evidence that was introduced to show that the defendant 

committed crimes for which he is not on trial. If you believe this evidence, you 

must be very careful only to consider it for certain purposes. You may only think 

about whether this evidence tends to show that the defendant knew what the 

things found in his possession were; that the defendant acted purposefully, that is 

not by accident or mistake, or because he misjudged the situation; that defendant 

used a plan, system or characteristic scheme that he has used before or since. 

 You must not consider this evidence for any other purpose. For example, 

you must not decide that it shows that the defendant is a bad person or that he is 

likely to commit crimes. You must not convict the defendant here because you 

think he is guilty of other bad conduct. 

On the whole, the trial court did not abuse its discretion when it allowed this evidence. 

Moreover, even assuming some error in the admission of any of this evidence, given the large 

quantity of heroin found in defendant’s home, the marked money used in the controlled buys, 

and defendant’s admission that he distributed drugs to others, defendant has not shown that it is 

more probable than not that the admission of the challenged other acts evidence was outcome 

determinative. See Burns, 494 Mich at 110. 

 Defendant next argues that the trial court should have suppressed evidence found 

pursuant to the search warrants executed on June 26 and 27, 2013. He argues that there was a 

lack of probable cause to issue the warrants. 

 “A search warrant may not be issued absent probable cause to justify the search.” People 

v Martin, 271 Mich App 280, 298; 721 NW2d 815 (2006). And, probable cause must be 

supported by oath or affirmation. Id. “Probable cause to issue a search warrant exists where 

there is a ‘substantial basis' for inferring a ‘fair probability’ that contraband or evidence of a 

crime will be found in a particular place.” Id. (citation omitted). 

[T]he task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all the circumstances set 

forth in the affidavit before him, including the “veracity” and

“basis of knowledge” of persons supplying hearsay information, 

there is a fair probability that contraband or evidence of a crime 

will be found in a particular place. And the duty of a reviewing 

court is simply to ensure that the magistrate had a “substantial 

basis for . . . conclud[ing]” that probable cause existed. [People v 

Keller, 479 Mich 467, 475; 739 NW2d 505 (2007) (citation 

omitted; alterations by Keller Court).] 

 With respect to the June 26, 2013 warrant, the supporting affidavit detailed a number of 

controlled drug buys made by a confidential informant, i.e., Champagne, over the course of 

several weeks and defendant’s involvement in those activities. Most relevantly, the confidential 

informant told police that defendant would be bringing 22 grams of heroin to the Caseville area 

on the afternoon of June 26, 2013. Further, the confidential informant stated that she had been 

told by defendant that she could go to defendant’s house to pick up heroin. Given this 
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information, the magistrate had a substantial basis for concluding that there was probable cause 

to believe that there would be heroin at defendant’s home, and thus the magistrate did not err by 

issuing the search warrant. See People v Whitfield, 461 Mich 441, 448; 607 NW2d 61 (2000). 

 Nonetheless, defendant argues that the warrant was based on “stale” information because 

there had been a substantial delay between any observation of criminal activity and the issuance 

of the warrant. Contrary to defendant’s argument, the triggering events for the June 26, 2013 

warrant—the conversations in which defendant stated that he would be bringing 22 grams of 

heroin to Caseville—occurred that day and the previous day. Moreover, while the details of the 

controlled purchases related to incidents occurring over several weeks, this did not render the 

search warrant invalid. Although the passage of time is a consideration in determining a search 

warrant’s validity, a lapse in time is less critical when a history of criminal activity or pattern of 

violations occurs. People v Stumpf, 196 Mich App 218, 226; 492 NW2d 795 (1992). “In the 

final analysis, the measure of a search warrant’s staleness rests not on whether there is recent 

information to confirm that a crime is being committed, but whether probable cause is 

sufficiently fresh to presume that the sought items remain on the premises.” People v Gillam, 93 

Mich App 548, 552; 286 NW2d 890 (1979). The affidavit in this case plainly detailed a pattern 

of criminal activity culminating in information that defendant would be bringing 22 grams of 

heroin to the area. This information was sufficiently fresh and it provided a substantial basis for 

the magistrate’s decision. 

 Defendant’s other challenge, that the affidavit contained insufficient evidence of the 

informant’s veracity or reliability, is also without merit. Four pages of the affidavit detailed the 

confidential informant’s ongoing interactions with Smith and defendant, including the 

circumstances surrounding all of the controlled purchases and the success of those purchases. It 

was reasonable, in light of this information, for the magistrate to find that the confidential 

informant was credible and that her most recent information concerning the fact that heroin 

would be found in defendant’s home was also reliable. See MCL 780.653; Stumpf, 196 Mich 

App at 223. There was sufficient probable cause to conclude that evidence of criminal conduct 

would be found in the home. 

 With respect to the search warrant issued on June 27, the affidavit indicated that the first 

search had uncovered only .2 grams of heroin when there was reason to believe that defendant 

had 22 grams of heroin. The affidavit stated that defendant had been arrested on June 26, and, 

during a conversation on June 27, defendant’s mother informed police of additional hiding places 

defendant might have used to conceal heroin. The affidavit stated that these locations had not 

been searched, or had not been searched thoroughly, during the first search. Given the 

information from the confidential information and the hiding places identified by defendant’s 

mother, there was a substantial basis for finding probable cause to issue the second search 

warrant because there was a fair probability that heroin would be found in defendant’s home. 

 In contrast, defendant appears to argue on appeal that the information was not fresh, and 

that the police search of the VCR was not authorized by the warrant. Given that the initial 

information was still less than 48 hours old, that police had already found some evidence in 

defendant’s room, and that defendant’s mother told officers that they missed a number of hiding 

places, the argument that the information was not fresh is without merit. The magistrate could 

reasonably find that the bulk of the heroin remained in the home. And contrary to defendant’s 
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assertions, the warrant did not limit where in the home the police could search for the heroin, 

meaning the search of the VCR was proper.2

 In sum, the magistrate did not err in issuing the 

search warrants and the trial court did not err by refusing to suppress this evidence. 

 Next, defendant argues that the trial court erred when it refused to allow two defense 

witnesses, Brandon Fabyan and Anthony Spencer, to more fully testify about incidents in which 

Fabyan and Spencer were charged with crimes, but for which the charges were dismissed. In 

particular, following a motion by the prosecution, the trial court excluded the results of a 

polygraph exam “passed” by Spencer as well as evidence of the fact that, after charges were 

filed, the cases against these individuals were dismissed. Because Champagne was involved 

with these cases as an informant, defendant maintains this evidence could have been used to 

impeach Champagne’s credibility and that, in violation of due process, the exclusion of the 

evidence denied him the opportunity to present a defense. 

 “Logical relevance is the foundation for admissibility of evidence.” People v Small, 467 

Mich 259, 264; 650 NW2d 328 (2002); MCL 768.29. “All relevant evidence is admissible,” 

unless otherwise excluded by law; and, conversely, “[e]vidence which is not relevant is not 

admissible.” MRE 402. Evidence is considered relevant if it has “any tendency to make the 

existence of any fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” MRE 401. “Evidence bearing on a 

witness's credibility is always relevant[.]” In re Dearmon, 303 Mich App 684, 696; 847 NW2d 

514 (2014). However, under MRE 403, otherwise relevant evidence may be excluded if, among 

other reasons, it is substantially outweighed by the danger of unfair prejudice or would lead to 

confusion of the issues. 

 In this case, when excluding the contested evidence, the court explained that although 

defendant could admit evidence that Champagne had made false accusations, “the fact that the 

Prosecutor is not proceeding on their cases . . . that is irrelevant.” The court’s decision was not 

 

2

 Defendant also argues that the second search warrant was overly broad because it encompassed 

more than the particular hiding places identified by defendant’s mother, namely, ceiling tiles, a 

lamp, and speakers. Defendant fails to support this argument with any legal authority, and we 

find this contention unavailing. The second affidavit made plain that, while the first search was 

partially successful, it had not been a thorough search. There were areas that were not searched, 

or not searched thoroughly, and more generally, the search was complicated because, for reasons 

unrelated to the search, defendant’s room was “in complete disarray.” Given the shortcomings 

of the first search, there was probable cause to believe heroin remained in defendant’s room. Cf. 

United States v Keszthelyi, 308 F3d 557, 572-573 (CA 6, 2002) (finding no probable cause for 

second search when there was no indication that the first search was deficient); United States v 

Gerber, 994 F2d 1556, 1559 (CA 11, 1993) (concluding second search of a car was appropriate 

when police had failed to look under the hood during their first search). Thus, we see no reason 

why the magistrate could not issue a second search warrant for defendant’s residence. Cf. 

United States v Pichay, 988 F2d 125 (CA 9, 1993) (determining that a second search warrant was 

properly obtained for the same location when a previous search had been less than thorough). 
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an abuse of discretion. A prosecutor has wide discretion in pursuing a criminal prosecution, 

People v Oxendine, 201 Mich App 372, 377; 506 NW2d 885, 888 (1993), and there are myriad 

factors that might influence the prosecutor’s decision. In other words, it is not clear that it was 

the purported falsity of Champagne’s accusations that led to the dismissal of charges against 

Fabyan and Spencer.3 Consequently, although previous false accusations by Champagne would 

be relevant to her credibility, the fact that charges against Fabyan and Spencer were not being 

pursued does not prove that Champagne made false allegations against the two, and thus also 

against defendant. For this reason, the trial court did not abuse its discretion by concluding that 

this evidence was irrelevant and thus inadmissible. MRE 401; MRE 402. In addition, even 

supposing this evidence was somehow relevant, it was properly excluded because the minimal 

relevance of information regarding dismissal of unrelated cases—when it is not entirely clear 

why those cases were dismissed—was substantially outweighed by the possibility of confusing 

the issues at trial. MRE 403. And, in any event, given the substantial evidence of defendant’s 

guilt, any error in the exclusion of this evidence was not outcome determinative. See Burns, 494 

Mich at 110. 

 Regarding defendant’s due process claim, contrary to defendant’s arguments, the 

exclusion of this evidence also in no way denied defendant an opportunity to present a defense 

because, consistent with the court’s ruling, both Spencer and Fabyan testified that Champagne’s 

allegations against them were false. For example, Spencer was able to testify that, during the 

time Champagne alleged that he sold her controlled substances, he was actually with his parole 

officer. Fabyan was also able to present the circumstances surrounding Champagne’s similar 

allegation against him, including the fact that he had not seen her in over a year when she 

accused him. In short, defendant had the opportunity to explore the veracity of Champagne’s 

previous allegations and thus the trial court’s ruling did not deny defendant an opportunity to 

present a defense. See McGhee, 268 Mich App at 637-638. 

 We also reject defendant’s claim that the trial court erred when it refused to allow 

Spencer to testify that in his case, he was offered, and presumably passed, a polygraph 

examination. “The bright-line rule that evidence relating to a polygraph examination is 

inadmissible is well established.” People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). 

Defendant maintains that this case is somehow different because the examination was not of him 

and did not occur in relation to the instant case. This argument is without merit. Defendant 

sought to admit the test results to support Spencer’s veracity and Champagne’s lack of veracity. 

The same reason for polygraph inadmissibility generally, i.e., that the jury would place undue 

weight on a test without sufficient scientific reliability, see People v Frechette, 380 Mich 64, 69; 

155 NW2d 830 (1968), applies here. 

 

3

 For example, the prosecutor explained on the record that charges against Fabyan were 

dismissed because, while he was out on bond, he was arrested for another crime carrying a 

longer potential sentence, and the prosecutor decided to pursue that charge instead. 
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 Defendant next argues that, in violation of Brady,

4

 the prosecutor improperly withheld 

information that Rollie Smith, Jr. perjured himself during his testimony in another case involving 

the delivery of a controlled substance. 

 Under Brady, a criminal defendant has a due process right of access to impeachment and 

exculpatory evidence possessed by the prosecution if that evidence might lead a jury to entertain 

a reasonable doubt about a defendant’s guilt. People v Brownridge, 237 Mich App 210, 214; 

602 NW2d 584 (1999). To establish a Brady violation, a defendant must prove: (1) that the state 

possessed evidence favorable to the defendant; (2) that the prosecution suppressed the evidence; 

and (3) that had the evidence was material, meaning that, had it been disclosed to the defense, a 

reasonable probability exists that the outcome of the proceedings would have been different. 

People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014). 

 Defendant maintains the prosecutor should have provided information that Smith 

committed “perjury” in another Huron Circuit Court case. Defendant has failed, however, to 

establish the factual predicate of his argument, i.e., that Smith committed perjury in the other 

case. It is somewhat unclear, but it appears that defendant is basing his allegation of perjury on 

the contention that another witness in that trial testified that Smith told the witness he had lied to 

the police in order to further the charges against that defendant.5

 Perjury involves “a willfully 

false statement” under oath. People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004). 

Conflicting testimony between witnesses does not prove perjury. See People v Parker, 230 Mich 

App 677, 690; 584 NW2d 753 (1998). Therefore, it is not clear that Smith committed perjury in 

a previous case, and thus defendant has not shown that the prosecutor withheld evidence that 

Smith committed perjury. Moreover, setting aside the question of “perjury,” even assuming that 

the prosecutor should have disclosed the fact that, in an unrelated case, another witness accused 

Smith of lying, this evidence was not material within the meaning of Brady. That is, assuming 

this evidence would be admissible, given the other evidence of defendant’s guilt, including the 

large quantity of drugs and buy money found in his room as well as his own admissions, there is 

not a reasonable probability that the outcome of the proceedings would have been different if the 

prosecutor had disclosed this evidence potentially impeaching Smith’s credibility. See Chenault, 

495 Mich at 150. 

 Defendant next argues that he is entitled to resentencing because the trial court engaged 

in impermissible fact-finding and offense variables (OV) 14, 15, and 19 were improperly scored. 

 In arguing that the jury must find the facts supporting his sentence beyond a reasonable 

doubt, defendant relies mainly on Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 

2d 403 (2004), and its predecessor, Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L 

Ed 2d 435 (2000). However, Michigan’s indeterminate sentencing scheme and sentencing 

enhancement statutes are not affected by Blakely or Apprendi. See People v Harper, 479 Mich 

 

4 Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). 

5

 Defendant cites to pages of the transcripts from this previous case, but defendant has not 

provided them on appeal for our review. 
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599, 613-615; 739 NW2d 523 (2007); People v Drohan, 475 Mich 140, 162 n 13; 715 NW2d 

778 (2006). Insofar as defendant references the United States Supreme Court’s more recent 

decision in Alleyne v United States, ___ US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), we 

note that this Court has concluded that judicial fact-finding remains appropriate under 

Michigan’s sentencing scheme even after Alleyne. See People v Herron, 303 Mich App 392, 

405; 845 NW2d 533 (2013), held in abeyance ___Mich ___; 846 NW2d 924 (2014). Herron 

constitutes binding precedent on this Court, MCR 7.215(C)(2), meaning that defendant is not 

entitled to additional fact-finding by the jury and he is not entitled to resentencing on this basis.6

 

 Regarding OVs 14, 15, and 19, on appeal, the trial court's factual determinations are 

reviewed for clear error and its determinations regarding the scoring of sentencing variables must 

be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 

NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions 

prescribed by statute, i.e., the application of the facts to the law, is a question of statutory 

interpretation, which an appellate court reviews de novo.” Id. 

 Defendant first challenges the scoring of OV 14, maintaining that it should not have been 

scored because, the possession conviction did not involve Rollie Smith, Jr., but only involved 

defendant’s possession of the heroin, meaning that the particular offense for which defendant 

was convicted was not a multiple offender situation. 

 OV 14 considers “the offender’s role” in a criminal transaction, and 10 points should be 

scored when “[t]he offender was a leader in a multiple offender situation.” MCL 777.44(1)(a). 

“[T]he plain meaning of ‘multiple offender situation’ as used in OV 14 is a situation consisting 

of more than one person violating the law while part of a group.” People v Jones, 299 Mich App 

284, 286; 829 NW2d 350 (2013), vacated on other grounds 494 Mich 880 (2013). Notably, 

when scoring OV 14, “the entire criminal transaction should be considered.” MCL 777.44(2)(a). 

Therefore, while generally offense variables are “offense specific,” OV 14 is “to be scored 

differently from most” and “[p]oints must be assessed for conduct extending beyond the 

sentencing offense.” See People v McGraw, 484 Mich 120, 126-127; 771 NW2d 655 (2009). 

 In this case, ample evidence was introduced to show that Smith was intimately involved 

in defendant’s scheme to possess the heroin for later distribution, and had done so with defendant 

and on his behalf in the past. Considering “the entire criminal transaction,” the trial court did not 

err in scoring OV 14 at 10 points. 

 Regarding OV 15, defendant argues this variable should not have been scored because 

defendant’s sales to Champagne incident to the controlled buys did not constitute “trafficking” as 

 

6

 An appeal of Herron to the Michigan Supreme Court has been held in abeyance pending the 

Michigan Supreme Court’s decision in People v Lockridge, 304 Mich App 278; 849 NW2d 388 

(2014), lv gtd, 496 Mich 852; (2014). However, “[t]he filing of an application for leave to 

appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not 

diminish the precedential effect of a published opinion of the Court of Appeals.” MCR 

7.215(C)(2). 
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defined by MCL 777.45(2)(c) because the sales were for her own personal use and not for further 

distribution. This claim is without merit. OV 15 assesses points for “aggravated controlled 

substance offenses.” MCL 777.45(1)(h) provides that 5 points are to be scored where “[t]he 

offense involved the delivery or possession with intent to deliver marihuana or any other 

controlled substance or a counterfeit controlled substance or possession of controlled substances 

or counterfeit controlled substances having a value or under such circumstances as to indicate 

trafficking.” “Trafficking” is defined as “the sale or delivery of controlled substances or 

counterfeit controlled substances on a continuing basis to 1 or more other individuals for further 

distribution.” MCL 777.45(2)(c). The plain language of MCL 777.45(1)(h) applies to 

possession with intent to distribute convictions, and, in this case, the 22 grams of heroin was of 

such a quantity and value as to indicate trafficking. Further, the evidence showed that defendant 

had a history of delivering drugs to Smith, on a continuing basis, for further distribution, and this 

evidence regarding defendant’s past practices provided a reasonable inference that he would 

distribute the drugs to Smith to resell. The trial court did not err in scoring this offense variable. 

 Defendant further challenges the scoring of OV 19 by arguing that his lies to police did 

not amount to an interference with the administration of justice. OV 19 is properly scored at 10 

points where “[t]he offender otherwise interfered with or attempted to interfere with the 

administration of justice.” MCL 777.49(c). “[T]he plain and ordinary meaning of ‘interfere with 

the administration of justice’ for purposes of OV 19 is to oppose so as to hamper, hinder, or 

obstruct the act or process of administering judgment of individuals or causes by judicial 

process.” People v Hershey (On Remand), 303 Mich App 330, 343; 844 NW2d 127 (2013). “It 

encompasses more than just the actual judicial process and can include [c]onduct that occurs 

before criminal charges are filed, acts that constitute obstruction of justice, and acts that do not 

necessarily rise to the level of a chargeable offense. . . .” Id. (internal quotation marks and 

citation and omitted; alteration by Hershey Court). Examples include: 

providing a false name to the police, threatening or intimidating a victim or 

witness, telling a victim or witness not to disclose the defendant’s conduct, fleeing 

from police contrary to an order to freeze, attempting to deceive the police during 

an investigation, interfering with the efforts of store personnel to prevent a thief 

from leaving the premises without paying for store property, and committing 

perjury in a court proceeding. . . . [Id. at 344.] 

 In the instant case, evidence was presented that defendant lied to the police about, for 

example, whether he had a larger amount of heroin than that found in the first search and 

whether defendant possessed a large amount of money. These remarks were an attempt to 

deceive the police during an investigation and they thus fall within the auspices of obstruction of 

justice as this Court and our Supreme Court have interpreted the language of OV 19. The trial 

court did not err in scoring this offense variable. 

 In reviewing the scoring of OV 19, we also reject defendant’s claims that OV 19 should 

be declared void for vagueness and that the rule of lenity requires that OV 19 be interpreted in 

defendant’s favor. “A statute challenged on constitutional grounds is presumed to be 

constitutional and will be construed as such unless its unconstitutionality is clearly apparent.” 

People v Vronko, 228 Mich App 649, 652; 579 NW2d 138 (1998). Further, when making a 

vagueness determination, judicial constructions of the statute must be considered and a statute “is 
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not vague if the meaning of the words in controversy can be fairly ascertained by reference to 

judicial determinations, the common law, dictionaries, treatises, or their generally accepted 

meaning.” Id. at 653. With respect to OV 19, the Michigan Supreme Court has noted that the 

statute “is plain and unambiguous.” People v Barbee, 470 Mich 283, 286; 681 NW2d 348 

(2004). And, attempting to deceive police during an investigation has been specifically held to 

constitute interference with the administration of justice. See Hershey (On Remand), 303 Mich 

App at 344. Consequently, OV 19 is not void for vagueness, particularly as applied to 

defendant’s conduct. See Vronko, 228 Mich App at 652-654. Because OV 19 is plain and 

unambiguous, its construction is also not subject to the rule of lenity. See People v Johnson, 302 

Mich App 450, 462; 838 NW2d 889 (2013) (“The rule of lenity applies only if the statute is 

ambiguous or in absence of any firm indication of legislative intent.”). 

 Lastly, defendant maintains that he was denied the effective assistance of counsel at trial. 

In particular, defendant argues that counsel “abandoned” him when she decided to offer only a 

limited closing argument on his behalf. Because defendant did not preserve this argument by 

moving for a new trial or an evidentiary hearing, our consideration of this claim is limited to the 

existing record. People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). 

 To establish a claim of ineffective assistance of counsel, the defendant must show that 

counsel’s performance was deficient and that there is a reasonable probability that, but for the 

deficiency, the results of the proceeding would have been different. Id. at 423-424 (citation 

omitted). “This Court will not substitute its judgment for that of counsel regarding matters of 

trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v 

Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). 

 Defendant has not shown that counsel’s decision to give a concise closing argument was 

objectively unreasonable. How and whether to give a closing argument is a matter of strategy. 

In re Ayres, 239 Mich App 8, 23; 608 NW2d 132 (1999); People v Burns, 118 Mich App 242, 

247; 324 NW2d 589 (1982). Looking to the record before us, we cannot say that counsel’s 

decision, in her words, to not “belabor the point considering the state has spent two long, 

painstaking days trying to show you with piecemeal, piecemeal, piecemeal of lots of evidence,” 

and to simply tell the jury that counsel knew that the jury would “hold them [the prosecution] to 

the standard of proof that they need to be held to” was error. This manner of concise argument 

could reasonably be intended to convey the weakness of the prosecutor’s case to the jury by 

suggesting a long response was unnecessary. Moreover, given the substantial evidence of 

defendant’s guilt—including the large quantity of heroin involved, the buy money found in his 

home, and his own admissions—defendant has not shown a reasonable probability that the brief 

nature of counsel’s closing argument affected the outcome of the proceedings. Thus, he has not 

shown that he was denied the effective assistance of counsel. 

 Affirmed. 

/s/ Joel P. Hoekstra 

/s/ Kathleen Jansen 

/s/ Patrick M. Meter