People v. Collins

• Citation: 298 Mich.App. 458,828 N.W.2d 392
• Decision Date: 15 November 2012
• Docket Number: Docket No. 305238.
• Parties: PEOPLE v. COLLINS.
• Court: Court of Appeal of Michigan (US)

298 Mich.App. 458

828 N.W.2d 392

PEOPLE

v.COLLINS.

Docket No. 305238.

Court of Appeals of Michigan.

Submitted Oct. 2, 2012, at Detroit.

Decided Nov. 15, 2012, at 9 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people.

Jonathon B.D. Simon, Bloomfield Hills, for defendant.

Before: JANSEN, P.J., and FORT, HOOD and SHAPIRO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of delivery of 50 grams or more, but less than 450 grams, of heroin, MCL 333.7401 (2)(a)( iii ), possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)( iv ), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)( iv ), and conspiracy to deliver and/ or possess with intent to deliver less than 50 grams of cocaine and/or heroin, MCL 333.7401(2)(a)( iv ). He was sentenced as a third-offense habitual offender, MCL 769.11, to concurrent terms of 10 to 40 years' imprisonment for each of his convictions. We vacate defendant's conviction of delivering 50 grams or more, but less than 450 grams, of heroin because the trial court improperly allowed the prosecution to aggregate numerous smaller deliveries into one charge. We affirm defendant's other convictions, but remand for resentencing.

This Court reviews the record de novo when addressing a claim of insufficient evidence. People v. Hawkins, 245 Mich.App. 439, 457, 628 N.W.2d 105 (2001). ¹ We also review de novo questions of statutory interpretation. People v. Gardner, 482 Mich. 41, 46, 753 N.W.2d 78 (2008).

MCL 333.7401 provides in relevant part:

(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....

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)( iv ) and:

* * *

( iii ) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony....

Heroin is a schedule I controlled substance. MCL 333.7212(1)(b). The elements of delivering 50 grams or more, but less than 450 grams, of heroin are (1) defendant's delivery; (2) of 50 grams or more, but less than 450 grams; (3) of heroin or a mixture containing heroin; (4) with knowledge that he was delivering heroin. See People v. Williams, 294 Mich.App. 461, 470, 811 N.W.2d 88 (2011); see also People v. Mass, 464 Mich. 615, 626–627, 628 N.W.2d 540 (2001) (stating that the amount and nature of controlled substances are elements of a delivery offense). Although the amount of the controlled substance is an element of a delivery offense, the defendant's knowledge of the amount is not an element. Mass, 464 Mich. at 626–627, 628 N.W.2d 540. “ ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship.” MCL 333.7105(1). “ ‘[T]ransfer is the element which distinguishes delivery from possession.’ ” People v. Schultz, 246 Mich.App. 695, 703, 635 N.W.2d 491 (2001), quoting People v. Steele, 429 Mich. 13, 25–26, 412 N.W.2d 206 (1987).

The primary prosecution witness, Jack Blocker, testified that the largest amount that defendant delivered to him on any one occasion was an ounce, or approximately 28 grams. There is no evidence in the record that would support a finding that defendant ever delivered more than 50 grams in a single transaction. Consequently, if the individual deliveries cannot be aggregated, there is no evidence supporting defendant's conviction for delivery of 50 grams or more, but less than 450 grams, of heroin. For the reasons set forth below, we conclude that defendant's various deliveries of 0.5 to 28 grams of heroin on separate occasions may not be aggregated to support a conviction for delivering 50 grams or more, but less than 450 grams, of heroin under MCL 333.7401(2)(a)( iii ).

First, MCL 333.7401(2)(a) sets forth different charges for four distinct quantity groups² when a defendant is charged with the manufacturing, creating, delivering, or possessing with intent to manufacture, create, or deliver a schedule 1 or 2 controlled substance. The statute sets forth different degrees of punishment, which are dependent on the amount of controlled substance that was delivered. The law imposes a more severe punishment on those who manufacture, create, deliver, or possess greater amounts of a controlled substance. Mass, 464 Mich. at 624–625, 628 N.W.2d 540. This system created by the Legislature would be undercut by allowing the prosecution to aggregate multiple small deliveries.

Second, delivery is defined as “the actual, constructive, or attempted transfer from 1 person to another of a controlled substance.” MCL 333.7105(1). This definitiondoes not use a plural form of “transfer,” indicating that delivery is a single transfer, not multiple transfers over a period of time.

Finally, caselaw does not support an interpretation of MCL 333.7401 that would allow the prosecution to aggregate separate deliveries. The question of what constitutes a single criminal transaction with respect to delivering a controlled substance has arisen in double jeopardy cases. In such cases, the defendants argued that their convictions for multiple counts of delivering a controlled substance violated the double jeopardy clause because the deliveries had been part of one criminal transaction. See People v. Bartlett, 197 Mich.App. 15, 18, 494 N.W.2d 776 (1992); People v. Edmonds, 93 Mich.App. 129, 133–134, 285 N.W.2d 802 (1979); People v. Cuellar, 76 Mich.App. 20, 21–23, 255 N.W.2d 755 (1977); People v. Martinez, 58 Mich.App. 693, 694–695, 228 N.W.2d 523 (1975). In that context, we have consistently held that separate deliveries constitute separate criminal transactions, which properly give rise to separate charges. See Edmonds, 93 Mich.App. at 133–134, 285 N.W.2d 802 (holding that two separate sales of heroin on the same day were not part of the same criminal transaction because there was no connection between the two deliveries, such as an agreement to return for a second sale after the first); Cuellar, 76 Mich.App. at 21–23, 255 N.W.2d 755 (concluding that two separate sales of heroin to the same buyer, one month apart, did not constitute the same criminal transaction); Martinez, 58 Mich.App. at 694–695, 228 N.W.2d 523 (holding that two separate deliveries to the same buyer, nine days apart, constituted separate criminal transactions). For example, in Bartlett, 197 Mich.App. at 18, 494 N.W.2d 776, we stated:

In resolving defendant's double jeopardy challenge, we look to whether the deliveries were separately bargained for and separately paid for and to 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.

We have also considered when a series of acts constitute separate criminal transactions, giving rise to separate charges, in the context of false pretenses and Medicaid fraud cases. See People v. Harajli, 161 Mich.App. 399, 403–408, 411 N.W.2d 765 (1987); People v. Payne, 177 Mich.App. 464, 466–468, 442 N.W.2d 675 (1989). In Harajli, 161 Mich.App. at 401, 411 N.W.2d 765, the defendants were gasoline station owners who tampered with the pumps so that customers were receiving less gasoline than that for which they paid. The prosecution aggregated the amounts that numerous customers were defrauded over several months to charge defendants with the felony of obtaining more than $100 by false pretenses, rather than charging defendants with the misdemeanor of obtaining $100 or less by false pretenses. Harajli, 161 Mich.App. at 401, 411 N.W.2d 765. This Court concluded that “different misrepresentations to different victims, made at different times, constitute different offenses even if they occur at the same place and pursuant to one overall ‘scheme.’ ” Id. at 407, 411 N.W.2d 765. In Payne, 177 Mich.App. at 466, 442 N.W.2d 675, the prosecution charged the defendant with “ ‘using a common plan or scheme to defraud the State of Michigan, Medicaidprogram,’” by making 505 false claims. We concluded that such a charge was inappropriate because the charging statute, MCL 400.607(1), made it illegal to submit a false claim. Consequently, the submission of each false claim constituted a separate offense, “and must be tried as such.” Payne, 177 Mich.App. at 468, 442 N.W.2d 675.

The prosecution relies primarily on conspiracy cases to argue that defendant's individual deliveries can be aggregated under a continuing-course-of-conduct theory. In People v. Rodriguez, 251 Mich.App. 10, 23, 650 N.W.2d 96 (2002), this Court concluded that the jury instructions were proper when the trial court instructed the jury that “ ‘[i]f you believe the evidence so shows, you may add up the separate amounts to show that there was an agreement to deliver over 650 grams or more [sic] of any mixture containing the controlled substance cocaine.’ ” In People v. Porterfield, 128 Mich.App. 35, 38–41, 339 N.W.2d 683 (1983), this Court held that there was sufficient evidence to convict the defendant of conspiracy to deliver over 50 grams of heroin. The defendant had conspired with other to sell heroin in one-quarter ounce packages on an almost daily basis.

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