Lesser included offense jury instruction; MCL 768.32(1); People v Heft; Meth use as a lesser included offense; MCL 333.7404(2)(b); Sufficiency of the evidence; Possession of meth; Great weight of the evidence; Prosecutorial misconduct; People v Brown

Finding no errors requiring reversal, the court affirmed defendant's possession of meth conviction. On appeal, the court rejected his argument that he was entitled to reversal of his conviction because the trial court failed to instruct the jury on the offense of meth use as a lesser included offense. Meth use includes an element that is not an element of meth "possession: that the defendant used" meth. This makes meth "use a cognate offense, and not a lesser included offense." The court also rejected his claim that the evidence was not sufficient to prove he possessed meth, noting the police found him with the meth, he admitted to them that it was his, and the woman (J) with whom he provided meth told police and testified she got it from him. "Despite contradictory testimony, when viewing the evidence in the light most favorable to the prosecution, there was enough evidence from which a reasonable fact-finder could conclude that defendant possessed the" meth. The court next rejected his contention that his conviction was against the great weight of the evidence, noting that while "there was conflicting testimony, it was not so contradictory as to lose its probative value altogether." It further rejected his argument that the prosecution committed misconduct, noting the "prosecution used evidence in the record to highlight inconsistencies between defendant’s and [J's] testimony and the statements they made to police the day of their arrest. This did not suggest that the prosecution had personal knowledge that a witness was not credible. The prosecution was permitted to argue from the facts that defendant’s and" J's testimony was unworthy of belief. Finally, the court held that defense counsel was not "ineffective for failing to move for a directed verdict at the close of the prosecution’s evidence, for failing to object to the prosecutorial misconduct in the prosecution’s closing arguments, [or] for failing to poll the jury following the verdict."