People v. Bartlett

• Decision Date: 11 August 1998
• Docket Number: Docket No. 201860
• Citation: 231 Mich.App. 139,585 N.W.2d 341
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Alan BARTLETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 341

585 N.W.2d 341

231 Mich.App. 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Alan BARTLETT, Defendant-Appellant.

Docket No. 201860.

Court of Appeals of Michigan.

Submitted Feb. 5, 1998, at Lansing.

Decided Aug. 11, 1998, at 9:15 a.m.

Released for Publication Nov. 2, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis LaBelle, Prosecuting Attorney, and Michael J. Stein, Assistant Prosecuting Attorney, for People.

Roman S. Grucz, Traverse City, for Defendant-Appellant.

Before MARKEY, P.J., and BANDSTRA and MARKMAN, JJ.

MARKEY, Presiding Judge.

Defendant appeals by right his jury trial conviction for knowingly keeping or maintaining a drug house, M.C.L. § 333.7405(d); M.S.A. § 14.15(7405)(d). Defendant was sentenced to serve six months in jail. We affirm.

This case stems from an investigation by the Traverse Narcotics Team (TNT) of a residence on Eighth Street in Traverse City. Undercover TNT agents observed several occurrences indicative of drug trafficking at the house, including numerous people entering the residence, staying for five to ten minutes, and leaving. Agents also engaged in at least two controlled buys of marijuana (one performed with prerecorded bills) from individuals at the residence, although not from defendant.

When police executed a search warrant for the first story of the residence, they found defendant, Billy Mitchell, and Blaine VanPelt present. Michigan State Police Detective John Turnquist testified that after he read defendant his Miranda ¹ rights, defendant agreed to speak with him. According to Detective Turnquist, defendant admitted that he was sleeping in a small room at the front of the residence facing Eighth Street; the room, presumably a living room, had a large picture window facing the street. Detective Turnquist also testified that defendant was sleeping in the same bedroom as Mitchell but in a different bed. The police found a sawed-off shotgun under one of the mattresses in that bedroom. The police recovered many items of drug paraphernalia, including marijuana pipes, rolling papers, a triple-beam scale, and small plastic bags in the bedroom where defendant and Mitchell were found.

Defendant told Detective Turnquist that he resided at that same Eighth Street residence and that he paid $120 to Mitchell for rent, although he was behind in his payments. He admitted to Detective Turnquist that he was aware of the drug trafficking from the residence but denied any involvement and contended that all of the sales were done behind closed doors outside his presence. ² Defendant also admitted that he knew there was a gun in the house but did not know where it was located.

Officer Dean Pratt, a narcotics investigator with the TNT, testified that the residence at issue was a large two-story home with separate apartments on the first and second floors and possibly in the basement. Because the TNT unit's search warrant applied only to the first floor of the residence, he did not search the rest of the house. Officer Pratt testified that defendant was in the front room or bedroom when the raid occurred. Despite hearsay objections, Officer Pratt also testified that the officer in charge of securing the front room told Pratt that defendant was in the front bedroom, lying on one of the beds. Pratt himself had only seen defendant standing in the room. Officer Pratt further testified that a summons and complaint found in defendant's bedroom showed the Eighth Street residence as defendant's home address. Although he was in charge of collecting the evidence at the scene, Officer Pratt was uncertain whether the shotgun or shotgun shells bore defendant's fingerprints.

Defendant's mother testified that defendant had been living with Mitchell at the Eighth Street residence for approximately two months before the police raid.

I

Defendant first argues that the trial court erred in instructing the jury that the crime of maintaining a drug house required only "general control" rather than "general supervisory control." Defendant disputes the fact that he had any control or authority to control the use of the residence and contends that the court's improper jury instruction created error requiring reversal. We disagree.

We review de novo claims of instructional error and questions of statutory interpretation. People v. Seeburger, 225 Mich.App. 385, 391, 571 N.W.2d 724 (1997); People v. Hubbard (On Remand), 217 Mich.App. 459, 487, 552 N.W.2d 493 (1996). This Court reviews jury instructions as a whole to determine whether there is error requiring reversal. People v. Piper, 223 Mich.App. 642, 648, 567 N.W.2d 483 (1997). The instructions must include all the elements of the charged offense and must not omit material issues, defenses, and theories if the evidence supports them. Id. Even if somewhat imperfect, instructions do not create error if they fairly present to the jury the issues tried and sufficiently protect the defendant's rights. Id.; People v. Daniel, 207 Mich.App. 47, 53, 523 N.W.2d 830 (1994); People v. Gaydosh, 203 Mich.App. 235, 237, 512 N.W.2d 65 (1994), citing People v. Caulley, 197 Mich.App. 177, 184, 494 N.W.2d 853 (1992). A conviction shall not be reversed where the error is harmless, however. M.C.L. § 769.26; M.S.A. § 28.1096. In reviewing a claim that the jury was improperly instructed, we will not reverse a verdict or order a new trial unless, after reviewing the record, it appears to this Court that the error resulted in a miscarriage of justice. M.C.L. § 769.26; M.S.A. § 28.1096; People v. Hall, 435 Mich. 599, 603-604, 460 N.W.2d 520 (1990). A miscarriage of justice, or manifest injustice, occurs when an erroneous or omitted instruction pertained to a basic and controlling issue in the case. People v. Johnson, 187 Mich.App. 621, 628, 468 N.W.2d 307 (1991). The defendant usually bears the burden of establishing error requiring reversal stemming from the issuance of an inappropriate jury instruction. See, generally, People v. Minor, 213 Mich.App. 682, 685, 541 N.W.2d 576 (1995).

M.C.L. § 333.7405(d); M.S.A. § 14.15(7405)(d) states as follows:

A person ... [s]hall not knowingly keep or maintain a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this article for the purpose of using these substances, or which is used for keeping or selling them in violation of this article.

If a criminal jury specifically finds that a violation of this statute was committed knowingly or intentionally, the person is guilty of a misdemeanor punishable by no more than two years' imprisonment, a maximum fine of $25,000, or both. M.C.L. § 333.7406; M.S.A. § 14.15(7406).

Unfortunately, the controlled substances act, M.C.L. § 333.7101 et seq.; M.S.A. § 14.15(7101) et seq., does not define "keep or maintain." Moreover, because no published opinion has interpreted the terms "keep or maintain" as they are used in M.C.L. § 333.7405(d); M.S.A. § 14.15(7405)(d), ³ we are faced with an issue of first impression.

The primary goal of statutory interpretation is to ascertain and give effect to the Legislature's intent, People v. Humphreys, 221 Mich.App. 443, 451, 561 N.W.2d 868 (1997), and the Legislature is presumed to intend the meaning it plainly expressed, People v. Pitts, 222 Mich.App. 260, 265, 564 N.W.2d 93 (1997). "If the plain and ordinary meaning of the [statutory] language is clear, judicial construction is normally neither necessary nor permitted." Id., citing Heinz v. Chicago Rd. Investment Co., 216 Mich.App. 289, 295, 549 N.W.2d 47 (1996). If reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Pitts, supra. When engaged in statutory construction, we must construe the statutory language according to the common and approved usage of the language and may refer to dictionary definitions when construing the language. Seeburger, supra at 392, 571 N.W.2d 724. Notably, the interpretations that other jurisdictions give to similar or identical language is of limited value in determining what the Michigan Legislature intended, absent circumstances suggesting that our Legislature considered these statutes or the decisions interpreting them when it enacted or amended the statute at issue. People v. Preuss, 436 Mich. 714, 734, 461 N.W.2d 703 (1990). These decisions may, however, be illustrative of the policy concerns the Legislature might have considered when adopting the statute and are helpful to our analysis here. See, generally, id. at 736, 461 N.W.2d 703.

Black's Law Dictionary (5th ed.), defines "keep" to include the following:

To have or retain in one's power or possession ... to preserve or retain. To maintain, carry on, conduct, or manage; as, to "keep" a bawdy house, gaming table, nuisance, or the like. To maintain, tend, harbor, feed, and shelter.

* * * * * * To maintain, to cause to continue without essential change of condition. To take care of and to preserve from danger, harm, or loss.

Black's Law Dictionary also defines "maintain" to include:

Bear the expense of; carry on; commence, continue; furnish means for subsistence or existence of....

* * * * * *

The words "maintains" and "maintaining" in statutes prohibiting maintenance of a liquor nuisance denote continuous or recurrent acts approaching permanence.

Additionally, other jurisdictions that have already adopted very similar or identical anti-drug house statutes have interpreted the phrase "keep or maintain." In Wahrer v. State, 901 P.2d 442, 444 (Alaska App.1995), the Alaska Court of Appeals held that Alas.Stat. 11.71.040(a)(5), ⁴ which mirrors M.C.L. § 333.7405(d); M.S.A. § 14.15(7405)(d), requires proof that the defendant knew that the premises were being used for continuing illegal drug activity but not that the defendant actively controlled or participated in the illegal...