320 N.W.2d 313 (Mich.App. 1982), 53752, People v. Potter

Docket Nº:Docket No. 53752.
Citation:320 N.W.2d 313, 115 Mich.App. 125
Opinion Judge:PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Allan POTTER, Defendant-Appellant.
Attorney:[115 Mich.App. 129] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People. Zimostrad, Wenzloff, Allsop & Zimostrad, P.C., Bay City, for defendant-appellant on appeal.
Judge Panel:Before CAVANAGH, P.J., and BRONSON, and BEASLEY, JJ.
Case Date:April 07, 1982
Court:Court of Appeals of Michigan
 
FREE EXCERPT

Page 313

320 N.W.2d 313 (Mich.App. 1982)

115 Mich.App. 125

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Richard Allan POTTER, Defendant-Appellant.

Docket No. 53752.

Court of Appeals of Michigan.

April 7, 1982

Page 314

Submitted Jan. 6, 1982.

Released for Publication June 11, 1982.

Page 315

[115 Mich.App. 129] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Thomas J. Rasdale, Asst. Pros. Atty., for the People.

Page 316

Zimostrad, Wenzloff, Allsop & Zimostrad, P.C., Bay City, for defendant-appellant on appeal.

Before CAVANAGH, P.J., and BRONSON, and BEASLEY, JJ.

PER CURIAM.

Defendant was charged with possession of a controlled substance with intent to deliver in violation of M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401) and as an habitual offender, by supplemental information pursuant to M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. A jury convicted defendant of both charges, and he was sentenced to a term of 10 to 15 years in prison. Defendant appeals by right.

Defendant first argues on appeal that the trial court erred by denying defendant's motions for a directed verdict and for a new trial. Although [115 Mich.App. 130] defendant admits he possessed a controlled substance, marijuana, he denies he had the specific intent to deliver it to anyone and claims the prosecutor offered no evidence to show the existence of such an intent.

In reviewing a motion for a directed verdict of acquittal, this Court must consider the evidence presented by the prosecution up to the time the motion was made, view that evidence in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. If sufficient evidence has not been introduced, a directed verdict or judgment of acquittal should be entered. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979); People v. Riemersma, 104 Mich.App. 773, 780, 306 N.W.2d 340 (1981).

Both possession and intent to deliver may be proven by circumstantial evidence. People v. Ferguson, 94 Mich.App. 137, 151, 288 N.W.2d 587 (1979). In addition, the intent to deliver may be inferred from the amount of controlled substance possessed by the accused. People v. Abrego, 72 Mich.App. 176, 181, 249 N.W.2d 345 (1976); People v. Serra, 55 Mich.App. 514, 520, 223 N.W.2d 28 (1974). In this case, the evidence disclosed that defendant possessed 80 marijuana cigarettes at the time of his arrest. An experienced undercover police officer testified that marijuana is often sold by individual cigarettes. Defendant was arrested in a public park which was known to be a place to buy and sell narcotics. Police officers testified that they had observed defendant give people in the park a well-known signal indicating a willingness to sell marijuana, and individuals had been observed going up to defendant's vehicle and handing defendant money [115 Mich.App. 131] in exchange for long, white objects. We conclude that the evidence was sufficient to infer that the defendant had the intent to deliver a controlled substance, and therefore the trial court did not err in denying defendant's motion for a directed verdict.

The standard governing the grant or denial of a motion for a new trial was established by the Michigan Supreme Court in People v. Hampton, supra, as follows:

"* * * [A] new trial may be granted if the trial judge finds that the guilty verdict was not in accordance with the evidence introduced and that an injustice has been done. * * * The decision whether to grant or deny a motion for a new trial is entrusted to the discretion of the trial court and that decision will not be disturbed on appeal without a showing of an abuse of discretion." (Citations omitted.) 407 Mich. 354, 373, 285 N.W.2d 284.

Applying this standard to the instant case, we conclude that the verdict rendered was in accordance with the evidence introduced and that the trial court did not abuse its discretion in denying defendant's motion for a new trial.

Second, defendant argues that the examining magistrate erred in binding defendant over for trial. Defendant claims that the quantity of marijuana found in his possession was insufficient evidence to establish an intent to deliver a controlled substance. In light of the fact that this Court has stated on several occasions that an intent to deliver may be inferred from

Page 317

the amount of controlled substance found in the accused's possession, we find no merit to defendant's argument. See People v. Ferguson, supra; People v. Abrego, supra; People v. Serra, supra. Our review of a magistrate's decision is limited to whether the magistrate [115 Mich.App. 132] abused his or her discretion in rendering the decision. People v. King, 412 Mich. 145, 155, 312 N.W.2d 629 (1981). We conclude that the evidence of the quantity of marijuana defendant possessed at the...

To continue reading

FREE SIGN UP