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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 21, 2017

v No. 329818 St. Clair Circuit Court ONTARIO MCDOWELL, LC No. 15-001223-FH

Defendant-Appellant.

Before: G LEICHER , P.J., and M URRAY and F ORT H OOD , JJ.

P ER C URIAM

. A jury convicted defendant of possession with intent to delive r methamphetamine in violation of MCL 333.7401(2)(b)(i). Defendant challenges the i ntroduction of drug-seller profile evidence at his trial. Although the prosecution crossed the li ne of permissible use of this type of evidence, its admission was harmless in light of the otherwise proper evidence of defendant’s guilt. We affirm.

I. BACKGROUND

On May 7, 2015, Port Huron police officers executed an arrest warrant and took defendant into custody as he walked down a public street. The officers conducted a pat-down search and uncovered three cell phones, $10.25 in cash, a black box containing a glass pipe and some straws, a corked glass vial containing a crystalline subst ance, and a black velvet bag filled with small “bindles” of a similar substance. The arresting off icers placed these items into evidence for examination by an officer with specialized narcoti cs training, Officer Ryan Mynsberge.

Officer Mynsberge completed advanced training regarding metham phetamine and became “basically the expert[] of our department” on that topic . Mynsberge described that the glass pipe was fashioned from a w ater tube used by florists. M ynsberge continued that on one side of the tube “there is some . . . charring or, and the blac k smoke that is in the hole portion or the rounded portion . . . . And th en there’s also some smoke o r charring going down the tube itself. . . .” The other side of the tube was discolored white . Mynsberge testified, “[t]ypically methamphetamine is smoked in thos e pipes.” He believed the pip e had been used for that purpose as “obviously some heat [ was] applied” which “melted” o ne “end.”-2- Inside the black velvet bag, Mynsberge found “nine paper bindl es,” paper folded into small envelopes. In Mynsberge’s experience, such packages usua lly contain heroin. The contents in this case, however, were “more like crystals.” Lat er testing revealed that the substance was crystal meth. Each bindle contained approximatel y 0.08 grams of the substance. The corked glass vial also contained “crystals.”

Mynsberge described how meth production has been simplified ov er the years, creating a more widespread problem. An individual can manufacture meth wi th a two-liter bottle, pseudoephedrine tablets, and a small number of other ingredient s. As the purchase of pseudoephedrine is now heavily monitored, meth manufacturers re cruit others to purchase this ingredient, which is colloquial ly referred to as “boxes.”

In relation to the meth market, Mynsberge testified that the drug is often referred to as “glass, ice or crystal,” and its production as “cook or bake” o r “a shake and bake.” Meth costs approximately $80.00 for one gram, Mynsberge asserted.

In relation to the 0.08-gram bindles uncovered in this case, M ynsberge explained, “Yes, that’s typically a user’s quantity. One of those bindles would be a user’s quantity. Usually typically around $20.00 for a bindle .” Questioning by the pros ecutor continued:

Q . [W]hen we talk about the am ounts that we’re looking at here, when we’ve got the nine pre-packaged bindles and this little corked bottle with some crystal, . . . in your training and experience are these consistent with packaging for sale or for personal use and could you explain that to us ?

A . Ah, looking at that that’s a combination of both. Inside that glass vial is a person’s personal use. Inside of the nine individually packaged bindles would be what somebody would probably distribute.

Q . Is it unusual in your experi ence, Officer Mynseberge, to hav e a user that’s also selling?

A . No, in fact that’s quite norma l to help support their habit they’ll sell the product as well. They’ll keep some for themselves and they’l l also sell it to help support their habit.

Q . And when we’re talking about a bindle being approximately $20.00. . . . But if, if we’re talking about that amount [nine bindles] is it your experience that, you know, a person who’s using is going to hav e a large amount of money to be able t o buy a large amount?

A . If they don’t have the product on them at that point it woul dn’t be unusual to see them with the money[.] [W]hen they have the pro duct on them[,] [t]hey’re probably typically brok e because they haven’t sold an y of it yet.

Q . . . . [I]f they’re just a user would they have enough to, to purchase, you know, an amount such as this?-3- A . That would be a lot for a user. [Emphasis added.]

On redirect, the prosecutor cla rified regarding the possession of “bindles”:

Q . . . . Of course a, a seller could have them, a user could bu y them. Why is it different in this case? What are you basing your opinion on that makes it different than, you know, his questioning about, well, of cours e if a user has them and a seller has them, why is it different here?

A . It’s the quantity of them. Typically if a person was going to purchase nine bindles of heroin or the amount of product that’s in the n ine bindles of heroin it just would have been in one package if it’s the user purchas ing that. Nine bindles is going to go, typically bindles are sold in threes. So those are going to go to three different users. Nin e divided by three is three.

Mynsberge secured a search warrant to examine the contents of defendant’s cell phones. Only one of the phones was operational and Detective Brian Kerr igan analyzed its contents. Kerrigan identified the phone as belonging to defendant as he w as listed as “me” in the phone’s “contacts” list and several “self ies” of defendant appeared in the camera roll.

In a messaging application, Kerrigan found a conversation refe rring to “coffee” in a context that appeared to be a reference to a drug transaction, later stating “Ok and I made 50 . . . Three for 50.” In several others, defendant announced, “Got gl ass,” a common reference for meth. In one conversation, defendant typed, “I’m not getting t hem don[e] shack no more I by a eight ball for 225.” Ke rrigan believed “shack” was a typograph ical error for “shake,” a term used for meth manufacture. Defendant then referred to “GLass, 3and 1/2 grames,” a term consistent with an “eight ball.” Defendant informed the recipi ent, “I call you but you have to come to me,” and “Got 3 20 for 50.” Kerrigan testified that th is was “significant” because “the 20 for 50 is trying to make a bargain, trying to sell two packe ts instead of one and giving him a little bit of a deal on the price.” Kerrigan also found “sever al additional text messages with different people talking about i ce or glass which is consistent with a slang term for crystal meth.” In yet another conversation, def endant was searching for someon e to secure “boxes,” i.e. pseudoephedrine, for him. And the tenor of the messages sugges ted that the phone’s owner was the manufacturer and selle r, not the buyer—“And got good bake,” “going fast,” “Got 20 . . . How many you need,” “I not doing to much of that stuff no more just here and there [t]o keep money in my pocket. . . .”

Like Mynsberge, Kerrigan testified that it was not unusual forsomeone to make meth both for sale and personal use. He explained that the “biggest hurdle” in the manufacturing process is securing pseudoephedrin e and that “they’ll exchange product for money for the boxes just to make their product.” The prosecutor also inquired whet her Kerrigan had “any opinion” on whether “the drugs we have in this case were packaged with t he intent to deliver or personal use.” Kerrigan opined:

Well, the totality of the text messaging. When you go through these there’s not going to be any blue messages going out from this phone indicat ing I need some money or I need some glass. I got glass, come and get it kind of messaging. And-4- it’s messages going out indicating a price. You know, three fo r 50 or whatever you have. So, just from that itself he’s looking for boxes in his message which indicates to me somebody that’s cooking or making meth as well. And then the amounts. You know, you heard the, the text message talking abo ut an eight ball or a three point five grams of meth that he’s purchasing for $2 25.00. You in turn will turn around and break that down into pieces and you’re goi ng to make a considerable amount of money selling that in user quantities to individual users versus what you paid for an e ight ball at one time.

A simple user, Kerrigan explai ned, could not afford such a larg e quantity.

Lieutenant Joseph Platzer testified that he supervised this in vestigation but did not take an active role. The prosecutor asked what the packaging used i n this case “suggests to you.” Platzer asserted:

With nine individual as we call them bindles that appears to be a dealer’s quantity. What we’re seeing out on the street today is that people will buy one bindle for $20.00 or they’ll get a , what they call a deal where they buy three for $50.00, which means that you buy three bindles at $20.00 each, they’ll cut $10.00 off so they’re getting three for $50.00. So that amount when t hey’re individually packaged, that would appear to be a dealer’s quantity of metham phetamine. [Emphasis added.]

The nine bindles found on defendant therefore would be worth be tween $150 and $180.

Defendant did not testify, but h is defense theory was that he was a mere user of narcotics, not a dealer. The jury rejected this theory and convicted defe ndant of possession with intent to deliver. Defendant appeals.

II. STANDARDS OF REVIEW

Defendant challenges the admi ssion of expert opinion testimony characterizing him as a drug dealer. He notes that the testifying “officers profiled t hree types of persons involved with drugs: users, dealers, and user/dealers.” Defendant asserts th at he “would have no complaint” “[h]ad the officers stopped there.” His complaint centers on M ynsberge “explicitly connect[ing] the user/dealer profile to [defe ndant] by stati ng his opinion t hat while the vial’s contents were for personal use, the drugs in the bindles were for distribution.” Defendant alternatively contends that his trial counsel was ineffective in failing to raise an o bjection.

We generally review for an abuse of discretion a trial court’s evidentiary rulings. People v Murray , 234 Mich App 46, 52; 593 NW2d 690 (1999). However, defendant failed to preserve his challenge by raising a timely objection. People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001). Our review is therefore limited to plain error affecting the defendant’s substantial rights, i.e. error th at “affected the outcome of th e proceedings” or resulted in the conviction of an innocent individual. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).-5- Defendant also failed to preserve his challenge to his attorne y’s performance by requesting a new trial or an evidentiary hearing, limiting our review to errors apparent on the existing record. People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective assistance of counsel, a defendant must show that c ounsel’s performance fell below an objective standard of reason ableness, and that the represent ation so prejudiced the defendant that he was denied the right to a fair trial. People v Pickens , 446 Mich 298, 338; 521 NW2d 797 (1994). The defendant must overcome the presumption that the c hallenged action was sound trial strategy. People v Tommolino , 187 Mich App 14, 17; 466 NW2d 315 (1991). “Defense counsel is given wide discretion in matters of tr ial strategy b ecause many calculated risks may be necessary in order to win difficult cases.” People v Unger , 278 Mich App 210, 242; 749 NW2d 272 (2008). To establish prejudi ce, the defendant must show th at there is a reasonable probability that, but for counsel’s error, the result of the pr oceeding would have been different. People v Johnson , 451 Mich 115, 124; 545 NW2d 637 (1996).

III. ANALYSIS

“[A] prosecutor may use expert testimony from police officers to aid the jury in understanding evidence in co ntrolled substance cases.” Murray , 234 Mich App at 53, citing People v Ray , 191 Mich App 706, 707; 479 NW2d 1 (1991). Such evidence is i nherently prejudicial, however, because i t suggests that innocent charact eristics may be indicative of criminal activity. Murray , 234 Mich App at 53. Prosecutors walk “a very fine line betwe en the probative use of profile evide nce as background or modus operan di evidence and its prejudicial use as substantive evidence.” Id . at 54.

In Murray , this Court carefully explained the rules governing the admiss ion of drug profile evidence. First, profile evidence must be offered for the proper purpose of providing background information or modus operandi evidence to the jury. Id . at 56. “[T]he profile, without more, should not normally enable a jury to infer the de fendant’s guilt. The prosecutor must introduce and argue some additional evidence from the case that the jury can use to draw an inference of criminality . . . .” Id . at 57. Moreover, a drug profile expert may not “opine that t he defendant is guilty merely because he fits the drug profile.” Id . at 54. The expert should not “expressly compare the defendant ’s characteristics to the profi le in such a way that guilt is necessarily implied.” Id . at 57. And finally, “[a]ttorney s and courts must clearly mai ntain the distinction between the profile and the substantive evidence.” Id . One way to accomplish this is to caution the jury regarding t he limited use of drug profile e vidence. Id

. Overall,

difficult as it may sometimes be, courts must take into conside ration the particular circumstances of a case and enable profile testimony that aids the jury in intelligently understanding the evidentiary backdrop of the cas e, and the modus operandi of drug dealers, but sto p short of enabling profile te stimony that purports to comment directly or substa ntively on a defendant’s guilt. [ Id . at 56.]-6- The prosecution and its witnesses crossed the line in this cas e and used profile evidence for an improper purpose by opining on defendant’s guilt. Offic er Mynsberge specifically testified that the meth packaged in the nine paper bindles was intended for distribution while the meth in the corked glass vial was for personal use. Officer Ke rrigan drew a direct inference of defendant’s guilt after compari ng the profile evidence to the t ext messages culled from defendant’s phone—that defendant was negotiating the price of m eth with a potential buyer. And Lieutenant Platzer expressl y opined that the nine bindles “ appear[ed] to be a dealer’s quantity.” This was an improper use of profile evidence and th ese statements should have been excluded.

The court gave no limiting inst ruction contemporaneous with th e witnesses’ testimony as defense counsel failed to object. The court also provided no f inal instruction to the jury regarding the proper use of drug pr ofile evidence. This too wa s error.
Despite the improper use of the profile evidence and failure t o provide a limiting instruction, relief is not warrant ed. The vast majority of the profile evidence was offered for a proper purpose. The evidence detailed the method of meth manuf acture, how ingredients are collected, the packaging of meth for sale, and the cost of the finished product. The jury could consider that evidence as background information to explain the significance of the physical evidence. Specifically, give n the amount of meth found on defe ndant and that it was divided into nine separate packets, the jury could extrapolate without assis tance that defendant intended to distribute rather than use the su bstance. Moreover, the prosec ution presented screen shots of several text-message conversations in which defendant reference d the manufacture of meth and offered to sell the drug to various customers. Given the stren gth of the properly admitted evidence, we cannot find that the improperly admitted evidence impacted the proceeding’s outcome or resulted in the convi ction of an innocent man.

Counsel’s errors also do not demand relief. Although Mynsberg e, Kerrigan, and Platzer improperly shared their opinions of defendant’s guilt, defense counsel was not necessarily ineffective in failing to object. “Certainly there are times w hen it is better not to object and draw attention to an improper comment.” People v Bahoda , 448 Mich 261, 287 n 54; 531 NW2d 659 (1995). Counsel may have strategic ally opted against drawing a ttention to this testimony.

More concerning to this Court is defense counsel’s failure to request that a limiting instruction be given to the jurors before they retired to delib erate. M Crim JI 4.17 provides the language for a “drug profile e vidence” instruction:

You have heard testimony from [na me witness(es)] about [his / h er / their] training or experience concerning other drug cases. This testi mony is not to be used to determine whether the defendant committed the crime cha rged in this case. This testimony may be considered by you only for the pur pose of [state purpose for which evidence was offered and admitted].

This instruction clearly should have been requested and given i n this case. We perceive no strategy for failing to request its reading.-7- However, it is unlikely that the reading of this instruction w ould have altered the outcome of defendant’s trial. As note d, significant evidence beyond th e police witnesses’ opinions established that defendant intended to distribute the narcotics in his possession. Accordingly, a new trial is not required.

We affirm.

/s/ Elizabeth L. Gleicher /s/ Christopher M. Murray /s/ Karen M. Fort Hood