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People v. Dickinson

Court of Appeals of Michigan

August 15, 2017

VICKI RENEE DICKINSON, Defendant-Appellant.

         Branch Circuit Court LC No. 14-101331-FH

          Before: Boonstra, P.J., and Ronayne Krause and Swartzle, JJ.

          Boonstra, P.J.

         Defendant appeals by right her convictions, following a jury trial, for delivery of a controlled substance less than 50 grams, MCL 333.7401(2)(a)(iv), possession of a controlled substance less than 25 grams, MCL 333.7403(2)(a)(v), and furnishing a controlled substance to a prisoner in a correctional facility, MCL 800.281(1). The trial court sentenced defendant to concurrent prison terms of 18 months to 240 months for the delivery conviction, 18 months to 48 months for the possession conviction, and 18 months to 60 months for the furnishing to a prisoner conviction. We affirm.


         On September 22, 2014, defendant visited a prisoner, Bobby Cain, at the Lakeside Correctional Facility in Coldwater, Michigan. Before that visit, Lakeside Correctional Facility Sergeant Todd Riley was advised by another corrections officer that a contraband drop might occur that day between Cain and defendant. Riley arranged for Cain and defendant to sit in the prison visitor room directly in front of (and about five feet from) the room's observation window so that he could observe them. During defendant's visit, Riley observed defendant go to a vending machine, make a purchase, sit back down next to Cain, take a "brown paper towel, "[1]crinkle it up, and place it on the TV tray that Cain and defendant were using. Cain picked up the paper towel and cupped it in his hand. Riley observed Cain transfer what was in the paper towel from one hand to the other, and then hold that hand cupped next to his leg. Cain placed the empty crinkled paper towel back onto the TV tray. Riley went to the visiting room, walked over to Cain, took hold of Cain's hand, and removed a blue balloon that was packed tightly with a substance. Cain was removed from the visiting room, and defendant calmly remained sitting where she was. Although other individuals were in the prison visiting room at the time of the incident, Riley observed no suspicious interactions between them and Cain. Defendant's visit with Cain was video-recorded by one of the prison visiting room cameras. At trial, Riley testified to these events, and the video recording was played for the jury during his testimony.

         Michigan State Police (MSP) Trooper Jeremy Miller testified that he was dispatched to the prison to test the contraband for narcotics. Miller removed the contents from the balloon and disposed of the balloon in the trash. He then took defendant into custody and searched her. With her consent, he also searched her vehicle, as well as her purse inside the vehicle, with the assistance of a drug-detecting dog. The dog had previously given an alert indicating the possible detection of narcotics in defendant's car. No drugs were found in defendant's car or purse. Miller sent the substance seized from the balloon to the MSP lab for further testing; the testing revealed the substance to be 5.68 grams of heroin.

         Miller testified that he prepared two police reports related to his investigation, an investigating officer report and a separate report related to the drug-detecting dog's search. Although both the prosecution and defense counsel possessed the investigating officer report, and although it reported that a dog was used in the search, neither was aware that the second police report existed. After Miller's testimony, defense counsel moved for a mistrial on the ground that defendant was prejudiced by the prosecution's failure to produce the second report in response to the defendant's discovery request. The trial court considered the evidence in the record and the fact that both parties lacked knowledge of the second police report before Miller testified to its existence. The trial court observed that defense counsel had cross-examined Miller and had obtained testimony from him that was favorable to the defense. Specifically, Miller admitted on cross-examination that this drug-detecting dog would often give a false alert in order to obtain his reward from his handler. Consequently, the trial court concluded that defendant was not prejudiced and denied defendant's motion for a mistrial.

         Defendant testified at trial. She stated that she had purchased an ice cream bar for Cain from the vending machine, that it had made her hand cold, and that she used a napkin to warm her hand. She set the napkin down on the TV tray but never noticed that Cain picked it up. She also explained that she took prescription pain medication that she believed the dog had detected in her purse. She stated that she never possessed the heroin that was taken from Cain and knew nothing about it.

         After the parties gave their closing arguments and the jurors were instructed, defense counsel renewed defendant's motion for a mistrial on the same discovery violation ground. The trial court again denied the motion. The jurors returned their verdict finding defendant guilty as described.

         At defendant's sentencing, the prosecution objected to the scoring for Prior Record Variable (PRV) 7, which required assessment of points for subsequent or concurrent felony convictions, and Offense Variable (OV) 14, which required assessment of points if the offender was a leader in a multiple offender situation. The prosecution argued that defendant should have been assessed 20 points (instead of zero) for PRV 7 because defendant had been convicted of two or more concurrent felonies. Defense counsel argued that defendant's convictions were for conduct in a single event and that PRV 7 applied only to separate events. The prosecution next argued that defendant was the leader in a multiple offender situation and should have been assessed ten points (instead of zero) for OV 14. Defense counsel argued that OV 14 required multiple participants, which this case did not have. Defense counsel then asked for an opportunity to brief the PRV 7 issue. Consequently, the trial court adjourned the sentencing hearing. When the trial court resumed the hearing, defense counsel argued that the trial court could not assess any points under PRV 7 because the two controlled substance offenses were based on the same facts and because considering them as concurrent convictions for purposes of scoring PRV 7 raised double jeopardy concerns. The prosecution argued that double jeopardy did not apply because the two controlled substance offenses for which defendant was found guilty required proof of separate and distinct elements. The trial court concluded that double jeopardy did not apply because each of the offenses that defendant committed required proof of separate and distinct elements. The trial court scored PRV 7 at 20 points.

         The trial court next addressed the prosecution's objection to scoring OV 14 at zero points. The prosecution argued that defendant's conduct in sourcing, acquiring, and delivering the heroin to Cain was indicative of her leadership role for which she should have been assessed points. The defense countered that Cain was the leader and that defendant was an unsuspecting dupe. The trial court was persuaded by the prosecution's argument and assessed defendant 10 points for OV 14.

         The trial court sentenced defendant as described. This appeal followed.

         While her appeal was pending, defendant filed three postconviction motions with the trial court, two of which are relevant to defendant's appeal. Defendant moved for the entry of a judgment of acquittal and also moved for resentencing. In her motion for acquittal, defendant argued that she could not be convicted and punished for both delivery and possession of heroin because that would violate the constitutional prohibition against double jeopardy. In her motion for resentencing, defendant argued that OV 19 was incorrectly scored at 25 points because defendant's conduct did not threaten the security of the penal institution. Defendant contended that OV 19 should be scored at zero points, which would result in a lower minimum sentence range of zero to nine months.

         The trial court issued a written opinion denying defendant's motion for acquittal. The trial court relied upon People v Smith, 478 Mich. 292, 315-316; 733 N.W.2d 351 (2007), in which the Michigan Supreme Court adopted the double jeopardy test articulated in Blockburger v United States, 284 U.S. 299, 304; 52 S.Ct. 180; 76 L.Ed. 306 (1932), under which a trial court must examine whether each offense required proof of an element that the other did not. The trial court applied the Blockburger test and concluded that possession of a controlled substance and delivery of a controlled substance were separate offenses. The trial court held that defendant could be convicted of both offenses and punished separately for each without violating defendant's rights against double jeopardy. The trial court also denied defendant's motion for resentencing because it found that defendant's smuggling of a controlled substance into the prison presented a serious threat to the security of a penal institution, and therefore that OV 19 was correctly scored at 25 points.


         On appeal, defendant argues that the trial court violated her constitutional right to be free from double jeopardy because she was separately convicted and punished for both possession and delivery of heroin. We disagree.

         We review de novo a claim that a conviction violates a defendant's protection from double jeopardy. People v Herron, 464 Mich. 593, 599; 628 N.W.2d 528 (2001). We also review de novo questions of statutory interpretation. People v Collings, 298 Mich.App. 458, 461; 828 N.W.2d 392 (2012).

         The United States Constitution and the Michigan Constitution both prohibit placing a defendant twice in jeopardy for a single offense. U.S. Const, Am V; Const 1963, art 1, § 15; People v Ford, 262 Mich.App. 443, 447; 687 N.W.2d 119 (2004). The Double Jeopardy Clauses "afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense." Ford, 262 Mich.App. at 447. The "purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment than the Legislature intended." Id. at 447-448. The Double Jeopardy Clauses, however, do not restrict or diminish the Legislature's ability to define criminal offenses and establish punishments. Id. at 448.

         In determining "whether the Legislature intended to impose multiple punishments for violation of more than one statute during the same transaction or incident, " trial courts must apply the "same elements" test articulated in Blockburger. Ford, 262 Mich.App. at 448. Under the Blockburger test, the trial court must inquire whether each offense contains an element not contained in the other offense. If the two offenses do not each contain at least one element that the other does not, double jeopardy bars additional punishment. Where "two distinct statutes cover the same conduct but each requires proof of an element the other does not, " a presumption exists that the Legislature intended multiple punishments unless the Legislature expressed a contrary intent. Ford, 262 Mich.App. at 448-449.

         In People v Ream, 481 Mich. 223, 238; 750 N.W.2d 536 (2008), the Michigan Supreme Court clarified that the "Blockburger test is a tool to be used to ascertain legislative intent." "Because the statutory elements, not the particular facts of the case, are indicative of legislative intent, the focus must be on these statutory elements." Id.

         More recently, the Court has stated that

[W]hen considering whether two offenses are the "same offense" in the context of the multiple punishments strand of double jeopardy, we must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts are required to abide by this intent. If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in Ream to ...

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