Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ELIAZAR ALEX SILVA, a/k/a ALEX SILVA, Defendant-Appellant.

UNPUBLISHED March 27, 1998

No. 193163 Kalamazoo Circuit Court LC No. 95-000781 FH

Before: Markey, P.J., and Griffin and Whitbeck, JJ. PER CURIAM. Defendant appeals as of right from his jury trial conviction for possession of marijuana with intent to deliver, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). Defendant was initially charged with a total of four counts, i.e., two counts each of delivery of marijuana and possession of marijuana with intent to deliver.1 Defendant was sentenced to three to eight years in prison, with the sentence enhanced pursuant to MCL 769.11; MSA 28.1083, as defendant was an habitual offender, third offense. We affirm. On January 12, 1994, the police conducted a valid search of a Kalamazoo residence, owned by defendant's sister, wherein defendant had been engaged in remodeling work. A twenty-pound bale of marijuana was seized from the attic. Furthermore, the search revealed a black and blue duffel bag, containing marijuana, as well as cellophane, duct tape, and ziplock bags. John Kornmiller, who had been hired by defendant to do remodeling work, was arrested just before the search of the residence. A search incident to Kornmiller's arrest revealed one-half pound of marijuana. He testified that the marijuana had come from the residence. I Defendant first contends on appeal that there was insufficient evidence presented at trial to sustain his conviction for possession of marijuana with intent to deliver. This Court reviews sufficiency of the evidence claims by considering the evidence in the light most favorable to the prosecution and -1

determining whether a rational trier of fact could have found that the essential

-2

elements of the charged crime were proven beyond a reasonable doubt. People v Head, 211 Mich App 205, 210; 535 NW2d 563 (1995). In analyzing an insufficiency claim, this Court does not resolve credibility assessments anew. People v Jackson, 178 Mich App 62, 65; 443 NW2d 423 (1989). The crime of possession of marijuana with the intent to deliver consists of four elements that must be proven by the prosecution: (1) the defendant knowingly possessed marijuana, (2) the defendant intended to deliver this substance to someone else, (3) the substance possessed was marijuana, and defendant knew it was marijuana, and (4) the substance was in a mixture that weighed a specific weight. CJI2d 12.3. Possession with intent to deliver can be established by circumstantial evidence and reasonable inferences arising from that evidence. People v Wolfe, 440 Mich 508, 526; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). The intent to deliver can be "inferred from the quantity of narcotics in a defendant's possession, from the way in which those narcotics are packaged, and from other circumstances surrounding the arrest." Id. at 524. Constructive possession may be proven "where a defendant knowingly has the power and intention to exercise dominion or control over a substance, either directly or through another person, or if there is proximity to the substance together with indicia of control." People v Sammons, 191 Mich App 351, 371; 478 NW2d 901 (1991). The evidence adduced at trial showed that defendant had directed Kornmiller to break up one of the bales; afterwards, the marijuana was placed into freezer ziplock bags. The second bale of marijuana, weighing approximately twenty pounds, was placed in the attic. In addition, when Kornmiller's work on the ceiling interfered with the bale of marijuana stored in the attic, defendant told Kornmiller to move the bale and cover it up again with insulation. This evidence was sufficient for the jury to infer defendant's constructive possession of the marijuana and his knowledge that the substance was in fact marijuana. Furthermore, since the quantity (i.e., twenty pounds) and form (i.e., compressed bale) of the marijuana, and the presence of ziplock bags, cellophane, and duct tape were associated with drug trafficking of marijuana, the jury could reasonably infer that defendant possessed the intent to deliver the marijuana. Wolfe, supra. We therefore conclude that the prosecution presented sufficient evidence to support defendant's conviction for possession of marijuana with the intent to deliver. II Defendant next argues that the trial court erred in permitting the prosecution to confront defendant with a past instance of involvement with the sale of marijuana. The extent to which a witness may be cross-examined on questions affecting his or her credibility rests in the sound discretion of the trial court. People v Bouchee, 400 Mich 253, 267; 253 NW2d 626 (1977); People v Khabar, 126 Mich App 138, 141; 337 NW2d 9 (1983). In the case at bar, during the direct examination of defendant, the following colloquy developed: Q. Did you, at any time, bring marijuana into the 706 Arthur Street residence? A. No, I did not.

-3

Q. Did you, at any time, pick up marijuana from a semi-truck in Van Buren County? A. No, I did not. Q. Did you know of anybody who was doing that at the time? A. No. No, I don't. Q. Did you know John Kornmiller to be dealing drugs at that time? A. Well, he

Download PEOPLE OF MI V ELIAZAR ALEX SILVA.pdf

Michigan Law