People v. Bartlett, Docket No. 124279

• Decision Date: 17 November 1992
• Docket Number: Docket No. 124279
• Citation: 197 Mich.App. 15,494 N.W.2d 776
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin Edward BARTLETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 776

494 N.W.2d 776

197 Mich.App. 15

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Benjamin Edward BARTLETT, Defendant-Appellant.

Docket No. 124279.

Court of Appeals of Michigan.

Submitted Oct. 14, 1992, at Lansing.

Decided Nov. 17, 1992, at 9:30 a.m.

Released for Publication Feb. 17, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Donald E. Martin, Pros. Atty., Samuel R. Smith, Chief Appellate Atty., and Guy L. Sweet, Asst. Pros. Atty., for the People.

Stiles & Associates, by Charles R. Stiles, Lansing, for defendant-appellant.

Before MURPHY, P.J., and GRIBBS and FITZGERALD, JJ.

MURPHY, Presiding Justice.

Defendant was convicted after a jury trial of two counts of delivery of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(1), (2)(a)(iv); M.S.A. Sec. 14.15(7401)(1), (2)(a)(iv). He was sentenced to two concurrent terms of three to twenty years' imprisonment. Defendant appeals, and we affirm.

On May 3, 1989, defendant sold crack cocaine to two undercover police officers. The officers were riding in a car when defendant called to them from a street corner and asked if the officers were looking for anything. One officer replied that he was looking for a "twenty," meaning a rock of cocaine worth twenty dollars. Defendant showed the officers several rocks of cocaine for different prices. After some negotiation, defendant sold a large rock of cocaine to one officer for forty dollars. Defendant then sold a smaller rock to the other officer for twenty dollars.

Defendant contends that the trial court erred in denying his motion for a directed verdict with regard to one of the delivery charges because the evidence was sufficient to show only one transaction. When reviewing a challenge of the sufficiency of the evidence presented at trial, we view the evidence in the light most favorable to the nonmovant and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Petrella, 424 Mich. 221, 268, 380 N.W.2d 11 (1985); People v. Vaughn, 186 Mich.App. 376, 379, 465 N.W.2d 365 (1990).

Defendant's argument is essentially one of double jeopardy. The United States and Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense. U.S. Const., Am. V; Const.1963, art. 1, Sec. 15. This includes protection from both successive prosecutions for the same offense and from receiving multiple punishments for the same offense. People v. Bewersdorf, 438 Mich. 55, 72, 475 N.W.2d 231 (1991); People v. Sturgis, 427 Mich. 392, 398-399, 397 N.W.2d 783 (1986). Whether a defendant has received multiple punishments for the same offense is determined by looking to the legislative intent behind the statutes violated. People v. Robideau, 419 Mich. 458, 485, 355 N.W.2d 592 (1984); People v. Kaczorowski, 190 Mich.App. 165, 169, 475 N.W.2d 861 (1991). That is, whether a defendant may be convicted twice depends upon whether the Legislature intended that two convictions might result under the statute in question under the circumstances of that case. See People v. Wakeford, 418 Mich. 95, 111, 341 N.W.2d 68 (1983).

In this case, we must determine whether M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401) permits multiple convictions and punishments under the circumstances of this case. We hold that it does. M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401) prohibits a person from delivering a controlled substance. Delivery is defined in M.C.L. Sec. 333.7105(1); M.S.A. Sec. 14.15(7105)(1), in pertinent part, as the actual, constructive, or attempted transfer from one person to another of a controlled substance.

In resolving defendant's double jeopardy challenge, we look to whether the deliveries were separately bargained for and separately paid for, and whether the second delivery was at the same time as the first. See People v. Miller, 182 Mich.App. 482, 484, 453 N.W.2d 269 (1990). In this case, the evidence demonstrated that although the deliveries were close in time, defendant sold two separate amounts of crack cocaine to the two officers separately, and that the cocaine rocks were separately bargained for and paid for. We conclude that, under the circumstances of this case, the Legislature intended that defendant be subject to prosecution for each delivery as a separate offense. The trial court therefore did not err in denying defendant's motion for a directed verdict.

Defendant further contends that the trial court improperly admitted evidence pursuant to MRE 609 regarding his prior conviction of breaking and entering. MRE 609 provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination, and

(1) The crime contained an element of dishonesty or false statement, or

(2) The crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

(b) Determining probative value and prejudicial effect. For purposes of the probative value determination required by subrule (a)(2)(B), the court shall consider only the age of the conviction and the degree to which a conviction of the crime is indicative of veracity. If a determination of prejudicial effect is required, the court shall consider only the conviction's similarity to...