People v. Barajas

• Decision Date: 02 March 1993
• Docket Number: Docket No. 124795
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arturo Carlos BARAJAS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 396

499 N.W.2d 396

198 Mich.App. 551

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arturo Carlos BARAJAS, Defendant-Appellant.

Docket No. 124795.

Court of Appeals of Michigan.

Submitted Oct. 14, 1992, at Grand Rapids.

Decided March 2, 1993, at 9:25 a.m.

Released for Publication May 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Jon R. Sahli, Pros. Atty., and Matthew L. Glaser and Ronald S. Pichlik, Asst. Pros. Attys., for the People.

Gemrich, Moser, Bowser, Fette & Lohrmann by Scott Graham, Kalamazoo, for defendant-appellant on appeal.

Before HOLBROOK, P.J., and MacKENZIE and SAWYER, JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of conspiracy to possess over 650 grams of cocaine. M.C.L. Sec. 750.157a(a); M.S.A. Sec. 28.354(1)(a) and M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i). He was sentenced to life in prison without parole. He now appeals, and we reverse.

Defendant's conviction arises out of a complicated drug deal. Briefly, defendant was to purchase approximately one kilogram of cocaine from Rene Vina. However, before the purchase was completed, one of Vina's employees, Richard Kellogg, began cooperating with the police. Apparently, Vina intended to make two sales on this particular occasion: one to defendant and one to a purchaser to be arranged by Kellogg. Unfortunately for Vina, Kellogg set up the sale with an undercover police officer.

Defendant was arrested, however, before the sale was completed. A search of Vina's motel room revealed a package intended for delivery to defendant. That package contained over one kilogram of baking soda and a rock of cocaine weighing 26.01 grams. The rock was taped to the inside of the box and the box had a V-style slit in it exposing the rock. Apparently, the purpose of the slit was to allow inspection of the contents by the purchaser (defendant) and was placed so that defendant would test the rock of cocaine and not the baking soda. One of the police officers involved expressed the opinion that Vina was endeavoring to "burn" defendant by delivering a smaller quantity of drugs than for which he had contracted.

Thus, although defendant never possessed the drugs in question, the prosecutor theorized that defendant had reached an agreement with Vina to possess the drugs. Accordingly, the prosecutor charged defendant with conspiracy.

Defendant's first argument is dispositive. Defendant argues that there was insufficient evidence to establish the conspiracy. We agree. We review an argument regarding the sufficiency of evidence by viewing the evidence in the light most favorable to the prosecutor and determining whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979).

A conspiracy is an agreement, expressed or implied, between two or more persons to commit an unlawful or criminal act. People v. Bettistea, 173 Mich.App. 106, 117, 434 N.W.2d 138 (1988). See also People v. Atley, 392 Mich. 298, 310-311, 220 N.W.2d 465 (1974); CJI2d 10.1; Dressler, Understanding Criminal Law, Sec. 29.01[A], p 373. Thus, to establish that defendant and Vina conspired in the case at bar, the prosecutor had to show, inter alia, that defendant and Vina had agreed that defendant would commit the crime of possession of more than 650 grams of cocaine. That is, the prosecutor had to establish that both defendant and Vina intended defendant to possess the requisite amount of cocaine.

Proof of the agreement may be established by circumstantial evidence. Atley, supra at 311, 220 N.W.2d 465. In this case, the prosecutor points to the package prepared for delivery to defendant. This is the package that contained over a kilogram of baking soda and the twenty-six-gram rock of cocaine. We would agree that if that package can be considered as constituting a mixture containing cocaine and weighing over 650 grams, combined with other evidence produced at trial that we need not review here, then defendant is guilty of the crime charged. We, however, reject the prosecutor's argument that this constitutes such a mixture.

The possession of cocaine, as well as other offenses, is punished with regard to the amount of the substance involved--the greater the amount involved, the greater the penalty. M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i) sets forth the penalty for possessing "650 grams or more of any mixture containing" cocaine. (Emphasis added.) Thus, the amount of cocaine within the mixture is irrelevant; rather, it is the weight of the entire mixture that establishes the penalty, without regard to purity. People v. Kidd, 121 Mich.App. 92, 328 N.W.2d 394 (1982). Thus, a person delivering a mixture containing 649 grams of baking soda and one gram of cocaine is punished more seriously than an individual who delivers 649 grams of pure cocaine.

As stated above, we agree that if the package prepared for delivery to defendant can be considered to be a mixture containing cocaine that weighs over 650 grams, then that evidence, along with the other evidence produced at trial, establishes that defendant and Vina conspired to commit the offense of possession of over 650 grams of cocaine. Unlike the prosecutor, however, we do not believe that the package contained a mixture weighing over 650 grams that contained cocaine. Rather, as will be discussed below, the package contained a mixture containing cocaine that weighed twenty-six grams (the rock of cocaine); it also contained over a kilogram of baking soda.

Where a word is undefined by statute, it is to be construed according to its common and approved usage. People v. Troncoso, 187 Mich.App. 567, 573, 468 N.W.2d 287 (1991). In doing so, resorting to the dictionary definition is appropriate. Id. The Random House College Dictionary: Revised Edition, p 856, defines "mixture" as follows:

1. a product of mixing. 2. any combination of contrasting elements, qualities, etc. 3. Chem., Physics. an aggregate of two or more substances that are not chemically united and that exist in no fixed proportion to each other. Cf. compound (def. 8).... 5. the act of mixing. 6. the state of being mixed....--Syn. 1. blend, combination; compound. 2. miscellany, medley, melange.

Random House, p 856, defines "mix," in part, as follows:

1. to put (various materials, objects, etc.) together in a homogeneous or reasonably uniform mass. [Emphasis added.]

Random House, p 143, defines "blend," in part, as follows:

1. to mix smoothly and inseparably together ... 3. to mix or intermingle smoothly and inseparably. 4. to fit or relate harmoniously ... 5. to have no perceptible separation....

In light of these definitions, we conclude, contrary to the prosecutor's suggestion, that the "mixture" containing cocaine must be reasonably homogeneous or uniform. That is, the cocaine and the filler (in this case, baking soda) must be "mixed" together to form a "mixture" that is reasonably uniform. A sample from anywhere in the mixture should reasonably approximate in purity a sample taken elsewhere in the mixture. ¹ It should be reasonably difficult to separate the cocaine from the filler material because of the mixing or blending of the two substances.

In the case at bar, the evidence does not support the conclusion that the cocaine was mixed with the baking soda. Indeed, when the baking soda was poured out of the box, the rock of cocaine remained, having been taped to the box. Clearly, the cocaine and the baking soda were easily separated. Further, the concentration of cocaine was not at all reasonably uniform or homogeneous. A sample taken from the baking soda would have yielded a mixture containing zero percent cocaine and one hundred percent baking soda. ² A sample taken from the rock of cocaine would yield a mixture containing 67.9 percent cocaine and 32.1 percent filler. Further, the two substances have somewhat differing...