STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 29, 2016
               Plaintiff-Appellee,

v                                                                    No. 328299
                                                                     Wayne Circuit Court
DARRYL ELAWRENCE BROWN,                                              LC No. 14-009861-01-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

         Defendant appeals as of right his jury trial conviction of one count of possession with
intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv). He was sentenced as a
second habitual offender, MCL 769.10, to five years’ probation, the first six months to be served
in jail. For the reasons set forth in this opinion, we affirm defendant’s conviction and sentence.

                                       I. BACKGROUND

       This appeal arises out of an incident which occurred in the City of Detroit on September
17, 2014. On that date, undercover police officers observed a known drug dealer on the front
porch of a Detroit residence, holding what police believed was a baggie containing drugs. As the
dealer entered the residence, police followed and while inside the home officers testified that
they observed defendant sitting in the dining room. According to police testimony, after police
ordered defendant to freeze he flung a pill bottle. The pill bottle was later discovered to have
contained 37 separate zip-locked packages of cocaine.

        Defendant, who testified on his own behalf, told the jury that he was at the residence that
day to investigate doing some electrical work on the house. While there, defendant was wearing
a pellet gun with a laser site in a shoulder holster. Defendant testified that he carried the pellet
gun for protection because he had been previously beaten and robbed. Defense counsel
attempted to introduce a photo of defendant after the beating, but the trial court denied
introduction of the photograph. Defendant denied possession of the cocaine, insisting that he
was at the home to investigate what electrical work the home needed. Defendant was convicted
and sentenced as stated above. This appeal then ensued.

                                         II. ANALYSIS


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        On appeal, defendant first argues that the trial court erred when it denied a defense
motion to admit a photograph of defendant’s injuries after he was beaten and robbed to support
his claim that he possessed a pellet gun as a warning to other potential attackers. A claim that
evidence was improperly excluded at trial is reviewed for an abuse of discretion. People v Starr,
457 Mich. 490, 494; 577 NW2d 673 (1998), citing People v Bahoda, 448 Mich. 261, 289; 531
NW2d 659 (1995). The admission of photographic evidence is reviewed for an abuse of
discretion. People v Coddington, 188 Mich. App. 584, 598; 470 NW2d 478 (1991).

         Two steps must be taken when a court is considering the admissibility of photos. People v
Mills, 450 Mich. 61, 66; 537 NW2d 909 (1995), mod on other grounds 450 Mich. 1212 (1996).
First, the court must determine whether the evidence is relevant under MRE 401. If it is, the
court must then determine whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice under MRE 403. Id.

         Defendant argues that the photo of his injuries after he had been beaten and robbed was
relevant because it relates to a fact in consequence. Relevant evidence is “evidence having 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. A fact
that is “of consequence” to the case is a material fact. People v McKinney, 410 Mich. 413, 418-
419, 301 NW2d 824 (1981).

       “Materiality looks to the relation between the propositions for which the evidence
       is offered and the issues in the case. If the evidence is offered to help prove a
       proposition which is not a matter in issue, the evidence is immaterial.”

               However, materiality does not mean that the evidence must be directed at
       an element of a crime or an applicable defense. . . . As stated by the United States
       Court of Appeals for the Sixth Circuit, in United States v Dunn, 805 F2d 1275
       (CA 6, 1986), a material fact “need not be an element of a crime or cause of
       action or defense but it must, at least, be ‘in issue’ in the sense that it is within the
       range of litigated matters in controversy.” [Mills, 450 Mich. at 67-68 (citations
       omitted).]

        At defendant’s trial, Officer Taylor testified that, in his experience, drug dealers often
carry weapons for protection. Defendant asserts on appeal that he testified about his reason for
carrying a pellet gun to refute any implication that he was a drug dealer that could have arisen
from Officer Taylor’s testimony. However, defendant’s reason for carrying a pellet gun does not
relate to the matter “in issue” in this case of whether defendant possessed the pill bottle
containing baggies of cocaine and tossed it away when confronted by police and thus is not a fact
of consequence. Likewise a photograph of the injuries he suffered after allegedly having been
beaten and robbed a month before the charged offense is also unrelated to the matter at issue.

       Defendant was charged with possession with intent to deliver less than 50 grams of
cocaine. To convict defendant of that offense, the evidence had to show:

       (1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture
       weighing less than fifty grams, (3) that defendant was not authorized to possess

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       the substance, and (4) that defendant knowingly possessed the cocaine with the
       intent to deliver. [People v Wolfe, 440 Mich. 508, 516-517; 489 NW2d 748
       (1992), amended 441 Mich. 1201 (1992).]

Because defendant was not charged with any offense related to his possession or carrying of the
pellet gun, his reason or intent in carrying the pellet gun was not ‘within the range of litigated
matters in controversy.” Mills, 450 Mich. at 68. Injuries defendant allegedly suffered after a
beating are immaterial to the issue in controversy of whether he committed the charged offense
of possession with intent to deliver less than 50 grams of cocaine. Although the photograph was
ostensibly offered to show that defendant carried the pellet gun after having been assaulted to
protect against another assault, there is no logical relationship between defendant’s past injuries
and his possession of the pill bottle containing bags of cocaine involved in the crime charged.
We also note that defendant was able to, on numerous occasions, inform the jury that his sole
reason for carrying the pellet gun was to protect himself from a future assault. Considering the
entirety of the record evidence presented, we cannot conclude that the trial court abused its
discretion when it found that the photograph was not relevant. Accordingly, defendant is not
entitled to relief on this issue.

       Defendant next argues that he was denied his Fifth Amendment due process rights
because insufficient evidence was presented at trial on the element of possession to prove beyond
a reasonable doubt. This Court reviews the record de novo when reviewing claims of insufficient
evidence to support a conviction. People v Meissner, 294 Mich. App. 438, 452; 812 NW2d 37
(2011). This Court must view the evidence in the light most favorable to the prosecution and
determine if a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815 NW2d 85 (2012).
Constitutional questions are also reviewed do novo. People v Herron, 464 Mich. 593, 599; 628
NW2d 528 (2001); People v Swint, 225 Mich. App. 353, 364; 572 NW2d 666 (1997).

        Due process requires the prosecutor to present sufficient evidence to justify a trier of fact
finding a criminal defendant guilty beyond a reasonable doubt. People v Johnson, 460 Mich.
720, 723; 597 NW2d 73 (1999). The determination of credibility and intent should be left to the
trier of fact to decide. People v Avant, 235 Mich. App. 499, 506; 597 NW2d 864 (1999).
Circumstantial evidence and the reasonable inferences drawn therefrom can constitute
satisfactory proof of the elements of the crime. People v Carines, 460 Mich. 750, 757; 597 NW2d
130 (1999). All conflicts in the evidence must be resolved in favor of the prosecution. People v
Terry, 224 Mich. App. 447, 452; 569 NW2d 641 (1997). Additionally, witness credibility is a
matter of weight, not sufficiency, of the evidence. People v Scotts, 80 Mich. App. 1, 9; 263 NW2d
272 (1977). This Court will not resolve the issue of witness credibility anew on appeal. People v
Milstead, 250 Mich. App. 391, 404; 648 NW2d 648 (2002).

        As previously stated in this opinion, the jury heard from police officers and from
defendant. Officer Taylor testified that he saw defendant toss a pill bottle found to contain bags
of cocaine to the floor while defendant testified that the pill bottle was never in his possession.
Testimony was also provided that the cocaine found in the pill bottle was in 37 separate baggies
of cocaine, a type of packaging known by law enforcement to be indicative of drugs to be offered
for sale. Additionally Officers Penn and Taylor both testified that defendant was found seated in
the dining room of a known drug house while a man with outstanding arrest warrants stood on

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the front porch of the house. Although defendant claimed during trial that he was at the house to
investigate providing electrical repairs for the house, the officers testified that there was no
electrical panel at the house and that defendant never told them he was there to provide electrical
services.

        Our review of the record evidence presented in this matter leads us to conclude that there
was sufficient evidence to convict defendant beyond a reasonable doubt. On appeal defendant is
essentially arguing that the testimony of the officers should be discarded and only defendant’s
testimony should be considered by this Court. We decline to do so for the reasons previously set
forth in this opinion. See, Milstead, 250 Mich. App. at 404; Terry, 224 Mich. App. at 452.

       Affirmed.



                                                            /s/ Michael J. Kelly
                                                            /s/ Christopher M. Murray
                                                            /s/ Stephen L. Borrello




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