“Mere presence” jury instruction (M Crim JI 8.5); Possession instruction (M Crim JI 12.7); Meaningful opportunity to present a defense; The trial court’s failure to read the statement of defendant’s theory of defense to the jury; Prosecutorial error; Alleged threatening of potential defense witnesses; Ineffective assistance of counsel; Failure to object & to call certain witnesses

The court rejected defendant’s jury instruction arguments, holding that the mere presence instruction was not supported where the prosecution was not proceeding on an aiding and abetting theory, and that the instructions, taken as a whole, sufficiently protected his rights. It also found no merit in his prosecutorial error and ineffective assistance of counsel claims. He was convicted of possession with intent to deliver meth and cocaine. It noted that the mere presence instruction is warranted “when the prosecution is proceeding under a theory of aiding and abetting.” At trial, the prosecution’s theory “was that defendant possessed the illegal drugs with the intent to deliver them and was not acting as an accomplice. Because an instruction pertinent to aiding and abetting was not supported by the evidence, the trial court did not abuse its discretion by declining to give” M Crim JI 8.5. Defendant also asserted the prosecution failed to establish that he possessed the illegal substances. The “trial court instructed the jury on each element of each offense with which defendant was charged and instructed the jury that the prosecution was required to prove each element of each charged offense. [It] further instructed the jury on the meaning of possession in accordance with M Crim JI 12.7. These jury instructions were supported by the evidence. The prosecution presented evidence that when the officers entered the house on the night in question, [an officer] saw defendant run down the hallway and into the northeast bedroom. While executing the search warrant,” they found a dresser in that “bedroom contained $4,500 in cash, a bag containing heroin, a bag containing [meth], and a gun light for a pistol. On top of the dresser was a W-2 belonging to defendant and under the mattress they found two empty magazines. In the southeast bedroom, the officers found a suitcase containing clothing, paperwork, and a gun magazine that defendant admitted belonged to him. [He] also admitted that the pill bottle and cash found in the living room belonged to him, and that in the Facebook video he is holding the pill bottle. While in jail, [he] made statements on the telephone that suggested that he was engaged in drug trafficking.” Given that the record supported the trial court’s jury instructions, “no miscarriage of justice occurred.” The court also found “no evidence that the prosecutor threatened the witnesses, or even had contact with” them. Affirmed.