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People v. Robar

Court of Appeals of Michigan

August 24, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
JASON CHARLES ROBAR, Defendant-Appellee.

         Muskegon Circuit Court LC No. 16-002635-FH

          Before: Gadola, P.J., Talbot, C.J., and Gleicher, J.

          Gadola, P.J.

         This case involves the offense of possession with intent to deliver a controlled substance, as set forth by MCL 333.7401 of the controlled substances act (CSA), MCL 333.7101 et seq., Article 7 of the Public Health Code, MCL 333.1101 et seq. The prosecution appeals by leave granted[1] an order of the trial court containing three rulings. First, the trial court ruled that, under People v Wolfe, 440 Mich. 508; 489 N.W.2d 748, amended 441 Mich. 1201 (1992), defendant was entitled to the use of a former version of the applicable model jury instruction, M Crim JI 12.3, rather than the current version, which was amended effective August 2016. Next, the trial court ruled that, under People v Gridiron, 185 Mich.App. 395; 460 N.W.2d 908 (1990) (Gridiron I), [2] the offense of possession of a controlled substance (simple possession), MCL 333.7403, is a necessarily included lesser offense of the offense of possession with intent to deliver a controlled substance. The trial court also determined that defendant would be entitled to a directed verdict if he produced evidence of a valid prescription because having such a prescription is a defense to prosecution for simple possession under MCL 333.7403(1). Finally, the trial court ruled that, under People v Pegenau, 447 Mich. 278; 523 N.W.2d 325 (1994), defendant bore the burden to produce some competent evidence of his authority to possess the controlled substances, after which the burden of persuasion shifted to the prosecution to prove that defendant lacked such authority beyond a reasonable doubt. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         Defendant is charged with one count of possession with intent to deliver less than 50 grams of a mixture containing Acetaminophen/Hydrocodone, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver Methylin, MCL 333.7401(2)(b)(ii). At the preliminary examination, the parties stipulated to the facts that defendant possessed the controlled substances at issue and that he admitted to the police that he intended to sell the substances. Defense counsel indicated that defendant had a valid prescription for both substances, and the prosecution conceded that defendant "has a prescription."[3]

         Defendant moved to dismiss the charges at the preliminary examination, arguing that simple possession is a necessarily included lesser offense of possession with intent to deliver a controlled substance under Gridiron I, and that having a valid prescription exempts a defendant from prosecution for simple possession under MCL 333.7403(1). The prosecution argued that Gridiron I was no longer binding, that a more recent case, People v Lucas, 188 Mich.App. 554; 470 N.W.2d 460 (1991), held that simple possession was merely a cognate lesser offense of possession with intent to deliver a controlled substance, and that having a valid prescription was not a defense to prosecution for possession with intent to deliver a controlled substance under MCL 333.7401(1). Following a hearing, the district court agreed with the prosecution and bound defendant over to the circuit court.

         Defendant subsequently moved in the circuit court to modify the applicable model jury instruction, M Crim JI 12.3, arguing that the jury instruction mischaracterized the law because it required a defendant to produce evidence that he or she was authorized to deliver a controlled substance to avoid prosecution under MCL 333.7401, while Wolfe required the prosecution to prove that a defendant lacked authority to possess a controlled substance as an element of the crime of possession with intent to deliver a controlled substance. The prosecution responded that the former version of M Crim JI 12.3 included the element that "the defendant was not legally authorized to possess the controlled substance, " but the instruction was amended in August 2016 to replace the word "possess" with "deliver, " which, the prosecution argued, accurately reflected the law as set forth by MCL 333.7401. The prosecution agreed that having a valid prescription exempts a defendant from prosecution for simple possession under the plain language of MCL 333.7403(1), but argued that the plain language of MCL 333.7401(1) provides no such exemption. Additionally, citing Justice BOYLE's concurring opinion in Pegenau, the prosecution contended that defendant bore the burden of both production and persuasion under MCL 333.7531(1) to prove that he was authorized to possess and deliver the controlled substances.

         The trial court concluded that it was bound by the Wolfe Court's formulation of the elements of the offense of possession with intent to deliver a controlled substance. One of the elements set forth by Wolfe requires the prosecution to show that a defendant was not authorized to possess the controlled substance. The trial court therefore agreed to use the former, rather than the amended, version of M Crim JI 12.3. The trial court also concluded that simple possession is a necessarily included lesser offense of possession with intent to deliver a controlled substance under Gridiron I. Therefore, defendant would be entitled to a directed verdict under the possession with intent to deliver a controlled substance statute if he could adequately establish the existence of a valid prescription because having a valid prescription is a defense to prosecution for simple possession. Finally, the trial court rejected the prosecution's position that MCL 333.7531(1) placed both the burden of production and persuasion on a defendant to prove authorization, concluding that under Pegenau, a defendant need only produce some competent evidence of authorization before the burden of persuasion shifts back the prosecution to prove lack of authorization beyond a reasonable doubt.

         II. JURY INSTRUCTIONS

         The prosecution contends that the trial court erred by ruling that defendant was entitled to the use of the former version of M Crim JI 12.3 because the current version accurately states the law. We review de novo claims of instructional error involving legal questions and issues of statutory interpretation. People v Bush, 315 Mich.App. 237, 243; 890 N.W.2d 370 (2016).

         A criminal defendant is entitled to have a properly instructed jury consider the evidence against him or her. People v Dobek, 274 Mich.App. 58, 82; 732 N.W.2d 546 (2007). Jury instructions must set forth all of the elements of any charged offense and must include any material issues, theories, or defenses supported by the evidence. Bush, 315 Mich.App. at 243. Model jury instructions do not have the force or effect of a court rule, but pertinent portions of such instructions "must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party." MCR 2.512(D)(1) and (2).

         The model jury instruction for possession with intent to deliver a controlled substance is M Crim JI 12.3, which states, in pertinent part, the following:

(1) The defendant is charged with the crime of illegally possessing with intent to deliver [state weight] of a [mixture containing a] controlled substance. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant possessed [identify controlled substance].
(3) Second, that the defendant knew that [he / she] possessed a controlled substance.
(4) Third, that the defendant intended to deliver the controlled substance to someone else.
(5) Fourth, that the controlled substance that the defendant intended to deliver [was in a mixture that] weighed (state weight).
[(6) Fifth, that the defendant was not legally authorized to deliver the controlled substance.] 3
3 This paragraph should be given only when the defense has presented some competent evidence beyond a mere assertion that the defendant was authorized to deliver the substance. If the defense presents such evidence, the prosecution must prove lack of authorization beyond a reasonable doubt. People v Pegenau, 447 Mich. 278, 523 N.W.2d 325 (1994). [Fourth and fifth emphasis added; first and second footnotes omitted; brackets in original.]

         Before the August 2016 amendment to M Crim JI 12.3, paragraph (6) stated the following:

[(6) Fifth, that the defendant was not legally authorized to possess this substance.] 4
4 This paragraph should be given only when the defense has presented some competent evidence beyond a mere assertion that the defendant was authorized to possess the substance. If the defense presents such evidence, the prosecution must prove lack of authorization beyond a reasonable doubt. People v Pegenau, 447 Mich. 278, 523 N.W.2d 325 (1994). [Emphasis added; brackets in original.]

         The Committee on Model Criminal Jury Instructions explained that it amended M Crim JI 12.3 to "correct the final element" of the instruction. The question before us is whether this amendment accurately reflects Michigan law.

         MCL 333.7401 sets forth the offense of possession with intent to deliver a controlled substance and provides, in pertinent part, the following:

(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form.

         In Wolfe, 440 Mich. at 516-517, our Supreme Court set forth the following elements for the offense of possession with intent to deliver cocaine: "(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 the substance, and (4) that defendant knowingly possessed the cocaine with the intent to deliver."[4] We are bound to follow decisions of the Supreme Court unless those decisions have clearly been overruled or superseded. People v Beasley, 239 Mich.App. 548, 556; 609 N.W.2d 581 (2000). The principle of stare decisis requires courts

to reach the same result as in one case when the same or substantially similar issues are presented in another case with different parties. Stare decisis does not arise from a point addressed in obiter dictum. However, an issue that is intentionally addressed and decided is not dictum if the issue is germane to the controversy in the case, even if the issue was not necessarily decisive of the controversy in the case. This Court is bound by stare decisis to follow the decisions of our Supreme Court. [Griswold Props, LLC v Lexington Ins Co, 276 Mich.App. 551, 563; 741 N.W.2d 549 (2007) (citations omitted).]

Wolfe has not been overruled and the language of MCL 333.7401(1) has not changed since the Supreme Court issued the opinion in 1992. However, we conclude that the formulation of the elements set forth by Wolfe is not alone dispositive because (1) Wolfe is factually distinguishable from the instant case and did not address the issue presented here, (2) our Supreme Court has also recited the elements of possession with intent to deliver a controlled substance in a way that does not include as an element that a "defendant was not authorized to possess the substance, " and (3) the plain language of MCL 333.7401(1) does not support that possessing a valid prescription is relevant to whether a defendant committed the offense of possession with intent to deliver a controlled substance.

         In Wolfe, 440 Mich. at 511, our Supreme Court analyzed whether sufficient evidence supported a defendant's conviction for possession with intent to deliver cocaine. After articulating the elements of the offense, the Wolfe Court explained that the defendant "challenged the sufficiency of the evidence only with respect to the fourth element-that he knowingly possessed cocaine with intent to deliver." Id. at 516-517. The Court did not analyze the other articulated elements and did not address the issues we are faced with today, those being whether a prescription authorizing a defendant to possess a controlled substance exempts a defendant from prosecution for the offense of possession with intent to deliver a controlled substance, or whether a defendant must instead show authorization to deliver the substance to avoid prosecution. We conclude that we are not bound by the rule of stare decisis to accept the formulation of the elements set forth in Wolfe because the case did not involve "the same or substantially similar issues" as those presented here. Griswold Props, 276 Mich.App. at 563.

         Moreover, the Wolfe Court did not construe MCL 333.7401 or otherwise analyze how it determined that the earlier mentioned four elements were the elements of the offense. Id. at 516-517. The Wolfe Court cited People v Lewis, 178 Mich.App. 464, 468; 444 N.W.2d 194 (1989), for the elements of the offense, and the Lewis Court merely adopted the elements of the offense articulated in People v Acosta, 153 Mich.App. 504, 511-512; 396 N.W.2d 463 (1986). Both Acosta and Lewis involved cocaine and cited the same jury instruction, CJI 12:2:00, to include as an element of the offense "that the defendant was not authorized by law to possess the substance." Acosta, 153 Mich.App. at 511 (emphasis added). Accordingly, the elements of possession with intent to deliver a controlled substance as articulated in Wolfe were not derived from statutory analysis. Additionally, Wolfe and the line of cases that provided authority for the Wolfe Court's formulation of the elements all involved cocaine rather than a controlled substance that could be obtained by a valid prescription, as is the case here.

         Next, the formulation of the elements in Wolfe is not the only formulation that our Supreme Court has articulated for the offense of possession with intent to deliver a controlled substance. In People v Crawford, 458 Mich. 376, 383, 389; 582 N.W.2d 785 (1998), our Supreme Court stated that the elements of the offense of possession with intent to deliver cocaine are as follows: "(1) the defendant knowingly possessed a controlled substance; (2) the defendant intended to deliver this substance to someone else; (3) the substance possessed was cocaine and the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed between 50 and 225 grams." The Crawford Court cited CJI2d 12.3 as its authority for these elements and did not independently construe the statutory language of MCL 333.7401. Id. at 389. Our Supreme Court and a panel of this Court in published opinions have both subsequently cited Crawford for this formulation of the elements of the offense. See People v Johnson, 466 Mich. 491, 499-500; 647 N.W.2d 480 (2002) (in the context of analyzing an entrapment defense); People v Williams, 268 Mich.App. 416, 419-420; 707 N.W.2d 624 (2005) (reviewing a defendant's challenge to the sufficiency of the evidence supporting his conviction of possession with intent to deliver marijuana). The fact that there are two different formulations used by this Court and our Supreme Court supports that we should not only consider Wolfe's formulation of the elements when assessing whether the current version of M Crim JI 12.3 accurately states the applicable law. We therefore also find it necessary to review the language of the statute itself.

         When interpreting statutes, courts must assess statutory language in context and must construe the language according to its plain and ordinary meaning. People v Lowe, 484 Mich. 718, 721-722; 773 N.W.2d 1 (2009). If statutory language is unambiguous, courts must apply the language as written and further construction is neither required nor permitted. People v Borchard-Ruhland, 460 Mich. 278, 284; 597 N.W.2d 1 (1999). If a word is defined by statute, the word must be applied in accordance with its statutory definition. Bush, 315 Mich.App. at 246. "It is well settled that ...


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