People v. DeLeon

Per Curiam.

Defendant was convicted by a jury *325of possession of heroin in violation of MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii). Thereafter sentenced to not less than 15 nor more than 40 years imprisonment, he appeals as of right raising numerous issues.

Abel DeLeon was driving a car in which defendant was a passenger when it was stopped for a routine traffic violation. After voluntarily exiting from the automobile by the passenger door, defendant tossed his hat onto the front seat. The officer saw plastic baggies under the hat. The baggies, containing heroin, were seized.

Defendant first claims that the trial court erred in instructing the jury on aiding and abetting and joint possession. An aiding and abetting instruction is proper where there is evidence that more than one person was involved in the commission of a crime and where there is evidence that defendant’s role in the commission thereof may have been something less than direct participation in the original wrongdoing. People v Benevides, 71 Mich App 168; 247 NW2d 341 (1976). To aid and abet possession, there must be criminal intent and direct or indirect acts or encouragement which aid in the perpetration of the crime. The act or encouragement must be done knowingly with the intent to aid the possessor to obtain or retain possession. People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971). From the evidence adduced at trial, the jury could have concluded that defendant either possessed the heroin or he tried to hide it by throwing his hat over it. Either act indicates enough evidence to support the instruction on aiding and abetting and joint possession.

Second, defendant argues that the trial court’s ruling regarding defendant’s familiarity with heroin had the effect of chilling his right to testify on *326his own behalf. The court ruled that should the defendant deny knowledge that the powder was heroin, the prosecutor would be allowed to establish such knowledge by evidence of prior acts. It was recognized in People v McCarver, 403 Mich 376; 269 NW2d 186 (1978), that similar acts evidence may be admissible to establish intent, knowledge and lack of mistake so long as the probative value of evidence is not outweighed by its prejudicial effect. The determination of whether the probative value of similar acts testimony is substantially outweighed by its prejudicial effect is within the sound discretion of the trial judge. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). We find no abuse of discretion.

Defendant’s next allegation of error is that Abel DeLeon’s testimony regarding a prior heroin conviction should have been admitted. Abel DeLeon’s prior testimony was read to the jury since he was unavailable within the meaning of MRE 804(a)(5), but the court did not allow the conviction testimony to be read. Defendant argues that the conviction testimony was admissible to show that the heroin belonged to Abel DeLeon. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. MRE 404(b). It may be admissible for other purposes. Applying Duncan, supra, the trial court’s determination was not an abuse of discretion.

Defendant’s fourth allegation of error is that evidence of purity and value of the heroin was improperly admitted. In People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978), similar evidence was deemed to be more probative than prejudicial. Knowing or intentional possession of a controlled substance is an element of the crime charged. *327Defendant’s defense was that he did not know the contents of the baggies. In the instant case, purity and value of the heroin were introduced to indicate knowledge, because one is not likely to possess an $11,000 asset without knowing what it is. This evidence was properly admitted.

Fifth, defendant contends that the seizure of heroin from the front seat of the car was illegal. It has long been settled that objects falling in the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be introduced into evidence. Harris v United States, 390 US 234; 88 S Ct 992; 19 L Ed 2d 1067 (1968). In this case the officer had a right to be outside the car and could see baggies containing a powder. The fact that the officer knew drugs are often wrapped in such containers and that defendant attempted to conceal the baggies by throwing his hat on top established probable cause for the officer to believe that contraband would be found at the time of the search. Thus, there was a legal seizure.

We find no merit in defendant’s sixth claim that the court’s comments during voir dire negated the possibility of an impartial jury. On appeal, it is well settled that instructions must be read in their entirety and not solely as isolated sentences. Bene-vides, supra. The excerpts relied upon by defendant are misleading when taken out of context. When read as a whole, the instructions were not incorrect.

We do not find error in a two-hour lunch recess between the defendant’s closing argument and the prosecutor’s rebuttal. Such a recess was in the sound discretion of the court. The burden is on the party claiming abuse of discretion to show it. People v Parker, 39 Mich App 622; 197 NW2d 829 *328(1972), lv den 388 Mich 774 (1972). Defendant has failed to show any apparent or probable prejudice caused by the recess.

Defendant’s eighth contention of error is that the prosecutor committed an act of prejudicial misconduct during closing argument. We examine the prosecutor’s remarks in the context in which they were made. Duncan, supra. During the trial, defense counsel accused a police officer of telling "bold face lies”. In response, the prosecutor, during closing argument, referred to defense counsel stating:

"His job is to do the best he can for his client, and if the best he can do for his client is try and make a witness look like he’s lying, that’s what he’s going to do.”

Even though the remarks of the prosecutor may be improper if standing alone, they will not amount to reversible error when made primarily in response to matters previously discussed by defense counsel. People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978). We find that the remarks were in response to the defense counsel’s remarks and no error resulted.

Defendant’s ninth issue is that the substance abuse provisions of the Public Health Code violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. This issue has been addressed by this Court in People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980), where the Court determined that there was no violation of the constitution’s title-object clause. See also People v Fuller, 106 Mich App 263; 307 NW2d 467 (1981).

Defendant next argues that mandatory mini*329mum sentencing violates the constitutional prohibition against cruel or unusual punishment. Const 1963, art 1, § 16. Defendant submits that a controlled substance offense is punished more severely than other possessory offenses, since mandatory minimum sentences are not prescribed except for possession of a firearm while in a commission of a felony, MCL 750.227b; MSA 28.424(2).

The dominant test for determining if a given punishment constitutes cruel or unusual punishment is whether "the punishment is in excess of any that would be suitable to fit the crime”. People v Lorentzen, 387 Mich 167, 176; 194 NW2d 827 (1972).

In People v Tanksley, 103 Mich App 268, 270; 303 NW2d 200 (1981), a panel of this Court found "the possession of between 50 and 225 grams of heroin is a most serious crime considering the large quantity and the nature of the drug involved”. Although made with reference to a sentence of probation for lifetime, we adopt the reasoning of the Court in Tanksley and find that the Legislature in fixing the maximum and minimum punishment for controlled substance offenses has not violated the constitutional prohibition against cruel or unusual punishment.

Defendant’s last argument is that mandatory minimum sentencing violates the equal protection clause of the constitution. Const 1963, art 1, § 2. Defendant contends that the weight classifications are arbitrary and fail to provide for equal treatment of persons in the same class since a person who possesses a certain amount of controlled substance contained in a mixture may receive a greater sentence than one who possesses the same amount of controlled substance in a pure form. We adopt the reasoning of the Court in People v *330Lemble, 103 Mich App 220, 222-223; 303 NW2d 191 (1981).

"Nor was this defendant denied equal protection of the laws. It is reasonable for the Legislature to impose more severe punishment for those possessing greater amounts of a mixture containing a controlled substance due to the potential for wider dissemination with an increased potential harm to society. The wording of MCL 333.7403; MSA 14.15(7403) indicates to this Court that the Legislature intended to punish defendants more severely for possession of greater amounts of 'any mixture’ containing a controlled substance with the recognition that purchasers of such mixtures often have little or no idea of what percentage of the mixture is filler and what percent is the 'pure’ drug. The greater the quantity of the mixture, regardless of the degree of purity, the greater the potential harm to society. Therefore, the different treatment for persons in different situations under the code is proper because it is based on the object of the legislation, deterrence of the distribution of the drug. People v Chapman, 301 Mich 584; 4 NW2d 18 (1942).”

Affirmed.