People v. Elmore, Docket No. 78-43

• Decision Date: 18 December 1979
• Docket Number: Docket No. 78-43
• Citation: 288 N.W.2d 416,94 Mich.App. 304
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ELMORE, Defendant-Appellant. 94 Mich.App. 304, 288 N.W.2d 416
• Court: Court of Appeal of Michigan — District of US

Page 416

288 N.W.2d 416

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert ELMORE, Defendant-Appellant.

Docket No. 78-43.

94 Mich.App. 304, 288 N.W.2d 416

Court of Appeals of Michigan.

Dec. 18, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 305] Robert Elmore, in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., Leonard J. Malinowski, Asst. Pros. Atty., Appellate Service, for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and CYNAR, JJ.

CYNAR, Judge.

Defendant was convicted by a jury of delivery of a controlled substance (heroin) M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a), and of being an habitual offender, M.C.L. § 769.11; M.S.A. § 28.1083, and was sentenced under the above provisions and under M.C.L. § 335.348; M.S.A. § 18.1070(48), to 53 years 4 months to 80 years imprisonment. Defendant appeals as of right In propria persona.

Defendant initially contends that the lower court's use of both the habitual offender statute, M.C.L. § 769.11; M.S.A. § 28.1083 and § 48 of the controlled substances act, M.C.L. § 335.348; M.S.A. § [94 MICHAPP 306] 18.1070(48), to increase the maximum term for delivery of heroin from 20 to 80 years, was an improper enhancement of his sentence. We agree. People v. Edmonds, 93 Mich.App. 129, 285 N.W.2d 802 (1979). ¹ Therefore, in accordance with § 48 of the Controlled Substances Act, in effect at the time defendant was sentenced, an abatement of the sentence to 26 years 8 months to 40 years is in order. People v. Edmonds, supra, 94 Mich.App. at 133, 285 N.W.2d at 805.

Next, defendant claims that reversible error was committed when his request for an instruction on specific intent was refused. He argues that the offense of which he was convicted, delivery of a [94 MICHAPP 307] controlled substance, requires a specific intent to deliver, thus necessitating the giving of the omitted instruction.

The record indicates that defense counsel made no request for an instruction on specific intent, instead merely asking for one on delivery of a controlled substance. Counsel also approved the instructions as proposed and as given.

Generally, the failure to object to an instruction as given before the jury retires precludes appellate review of any claimed error therein. GCR 1963, 516.2. If a miscarriage of justice would result from a failure to review the instructions for error, the general rule does not obtain. People v. Haney, 86 Mich.App. 311, 318, 272 N.W.2d 640 (1978), Inter alia. So, too, reversible error may be found even in the absence of an objection where the charge omits an essential element of an offense. People v. Peoples, 75 Mich.App. 616, 620, 255 N.W.2d 707 (1977); People v. Ashford, 91 Mich.App. 693, 283 N.W.2d 830 (1979).

No Michigan case has spelled out the elements of the crime of which defendant was convicted. However, in the commentary to CJI 12:2:03, found at page 12-31, the commentators quote with approval the instructions on delivery of heroin given in People v. Dyson, 56 Mich.App. 59, 64, 223 N.W.2d 364 (1974), which instructions include intent to deliver as an element of the offense. ² It is worth [94 MICHAPP 308] noting that the Court in Dyson approved that instruction even though no separate instruction on specific intent was given. Nor does the use note to CJI 12:2:03 suggest an instruction on specific intent where, as here, an attempt is not alleged.

The instruction given in the instant case ³ was a combination of CJI 12:2:03 and the Dyson instruction. Reading and assessing the instructions as a whole, ⁴ we find that delivery was defined to include both knowledge of the nature of the substance and an intent to deliver the same to another. As such, the instruction did not fail to include an essential element of the charged offense, nor did the use of such instruction in charging the jury result in a miscarriage of justice. We find no error in failing to instruct on specific intent on these facts.

As defendant made no attempt to have the trial court rule on the issue of entrapment, appellate review is precluded. People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922 (1973); People v. Edmonds, supra.

Defendant's conviction is affirmed with his sentence reduced in conformity with this opinion.

Affirmed.

1 We note that the conclusion reached on this question by the panel in Edmonds is further reinforced by the Legislature's subsequent amendment of M.C.L. § 769.11; M.S.A. § 28.1083, which now provides:

"Sec. 11. (1) If a person has been convicted of 2 or more felonies, attempts to commit felonies, or both, whether the convictions occurred in this state or would have been for felonies in this state if the convictions obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:

"(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court, except as otherwise provided in this section or section 1 of chapter 11, may sentence the person to imprisonment for a maximum term which is not more than twice the longest term prescribed by law for a first conviction of that offense or for a lesser term.

"(b) If the subsequent felony is punishable upon a first conviction by imprisonment for life, then the court, except as otherwise provided in this section or section 1 of chapter 11, may sentence the person to imprisonment for life or for a lesser term.

"(c) If the subsequent felony is a major controlled substance offense, the person shall be punished as provided by Act No. 196 of the Public Acts of 1971,...