People v. Doemer, Docket No. 9141

• Decision Date: 23 July 1971
• Docket Number: Docket No. 9141,No. 2,2
• Parties: , 47 A.L.R.3d 1236 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank DOEMER, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 330

192 N.W.2d 330

35 Mich.App. 149, 47 A.L.R.3d 1236

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank DOEMER, Jr., Defendant-Appellant.

Docket No. 9141.

Court of Appeals of Michigan, Division No. 2.

July 23, 1971.

Released for Publication Dec. 17, 1971.

Frank J. Penirian, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and O'HARA, ^* JJ.

BRONSON, Judge.

Defendant, Frank Doemer, Jr., was convicted of unlawful possession of marijuana (M.C.L.A. § 335.153 (Stat.Ann. 1957 Rev. § 18.1123)). After a three-day jury trial in Macomb County Circuit Court, defendant was sentenced to one and one-half to 10 years in prison. He appeals as of right.

The relevant facts are these. Leroy Baker, a Fraser police officer, on information from a reliable informant that a shipment of narcotics was coming in a Volkswagen from California to defendant's parent's home, engaged in a surveillance of that home on October 15, 1969, with members of the Clinton Township Police Department. The Volkswagen never arrived, but the informant notified Baker that certain individuals would take a U-Haul truck to Ypsilanti to pick up the narcotics. At approximately 8:00 a.m., two unidentified individuals were seen leaving defendant's home. They were later seen picking up a U-Haul truck at a gas station on 15 Mile Road and Garfield in Macomb County and were followed back to defendant's home. Shortly thereafter, two individuals, whether they were the same individuals who had picked up the U-Haul is not clear, left defendant's home in the U-Haul. The police followed them to Ypsilanti where they entered an apartment building. Approximately 45 minutes later, three persons, one carrying a package, left the apartment and returned to Clinton Township in the U-Haul. The truck was stopped at 15 Mile and Garfield. The arresting officers, upon observing what appeared to them to be marijuana in a passenger's lap, arrested all three passengers for possession. Defendant Doemer was driving the truck. No narcotics were found on his person.

At trial, the judge, without objection, instructed the jury on possession and on aiding and abetting. Defendant now contends that instructing on the latter was erroneous as a matter of law. If he is right, there is a clear injustice on the record requiring reversal.

Doemer argues that he must have been convicted of aiding and abetting since he had no physical possession of narcotics. He contends this is not possible because there is no crime of aiding and abetting possession.

Defendant's contention that his lack of physical possession precludes his conviction for possession has no bearing on the result we reach. Assuming he is correct, reversal is not required if his aiding and abetting argument fails. That argument is the crux of his case.

There are no Michigan cases discussing the precise issue raised. There is California precedent, however, that one can aid and abet possession. People v. Henderson (1953), 121 Cal.App.2d 816, 264 P.2d 225; People v. Solo (1970), 8 Cal.App.3d 201, 86 Cal.Rptr. 829; People v. Francis (1969), 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591. Defendant's argument that possession is a crime of status does not convince us that California is wrong. Contrary to defendant's contention, possession is an act. Cf. Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d...