People v. McBurrows, 338552

• Decision Date: 19 December 2017
• Docket Number: No. 338552,338552
• Citation: 322 Mich.App. 404,913 N.W.2d 342
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Romon Berry MCBURROWS, Defendant–Appellant.
• Court: Court of Appeal of Michigan — District of US

322 Mich.App. 404

913 N.W.2d 342

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Romon Berry MCBURROWS, Defendant–Appellant.

No. 338552

Court of Appeals of Michigan.

Submitted December 7, 2017, at Detroit.

December 19, 2017, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, William P. Nichols, Prosecuting Attorney, and Michael C. Brown, Assistant Prosecuting Attorney, for the people.

Rockind Law (by Neil Rockind and Noel Erinjeri) for defendant.

Before: Talbot, C.J., and Borrello and Riordan, JJ.

BORRELLO, J.

In this interlocutory appeal, defendant appeals by leave granted¹ the trial court's order denying his motion to dismiss. Defendant is charged with one count of delivery of a controlled substance causing death (fentanyl), MCL 750.317a. Defendant argued in the trial court as well as on appeal that the trial court lacks "jurisdiction."² For the reasons set forth in this opinion, we reverse and remand the matter to the trial court for further proceedings consistent with this opinion.

I. BACKGROUND

This case arises out of the drug-related death of Nicholas Abraham. On December 12, 2016, Nicholas called William Ingall to tell Ingall that he was coming over because he wanted to get some heroin. Later that night, they traveled together in Nicholas's pickup truck to a house in Detroit to purchase heroin from defendant. Once they arrived in the area, Ingall called defendant's cell phone and informed defendant that he wanted to "get some heroin." Nicholas gave Ingall $100, and he waited in his pickup truck while Ingall left and purchased heroin from defendant inside a nearby house. Ingall gave defendant $100, and defendant gave Ingall heroin that was wrapped up in paper.

Subsequently, Ingall returned to Nicholas's truck with the heroin, and they went to a nearby laundromat where they used the heroin. Ingall used approximately $20 worth of the heroin, and Nicholas used approximately $10 worth of the heroin. According to Ingall, the heroin "was really strong," and it "wasn't real bitter like the heroin would be." After Ingall noticed the strength of the heroin, he told Nicholas "to be careful with it."

Nicholas dropped Ingall off at Ingall's house and then went home. Nicholas lived in Monroe County with his wife, Michelle Abraham. After getting home at approximately 10:00 p.m. that evening, Nicholas put down two lines of heroin on a table and told Michelle to snort the heroin. Michelle passed out after she used the heroin. When she regained consciousness, she discovered that Nicholas was not breathing and tried unsuccessfully to resuscitate him. Nicholas was pronounced dead during the early morning hours of December 13, 2016. An autopsy was subsequently performed by Dr. Leigh Hlavaty of the Wayne County Medical Examiner's Office, who opined that Nicholas's death was caused by fentanyl

toxicity. According to Detective Michael McClain of the Monroe County Sheriff's Office Vice Unit, fentanyl is sometimes used by heroin dealers as "a cutting agent to make the heroin more potent."

Defendant was charged with one count of delivery of fentanyl causing death, and he was bound over to the Monroe Circuit Court following his preliminary examination. Defendant subsequently moved to dismiss the prosecution's case on the ground that the trial court lacked "jurisdiction." Defendant contended that the trial court lacked jurisdiction over him because the only "act" that he allegedly committed—the delivery of fentanyl—occurred in Wayne County and he did not commit any act in Monroe County given that Nicholas's death was not an "act" committed by defendant.

A hearing was held on defendant's motion, and the trial court denied the motion. The trial court ruled that defendant could be tried in either Wayne County or Monroe County because elements of the charged offense occurred in both of those counties. The trial court further reasoned that venue was authorized in Monroe County because a "mortal wound

" was inflicted by means of the drug transaction, which resulted in a death in Monroe County.

We granted defendant's application for leave to appeal, as well as his motion to stay the proceedings pending resolution of this appeal.³

As a threshold matter, we note that although defendant has characterized his challenge as one involving the trial court's "jurisdiction," the question presented in this appeal is actually whether venue was properly laid in Monroe County. "Jurisdiction is the power [of a court] to act." People v. Johnson , 427 Mich. 98, 106 n. 7, 398 N.W.2d 219 (1986) (opinion by BOYLE , J.) (quotation marks and citations omitted; alteration in original). "Michigan circuit courts are courts of general jurisdiction and unquestionably have jurisdiction over felony cases." People v. Lown , 488 Mich. 242, 268, 794 N.W.2d 9 (2011), citing Const. 1963, art. 6, §§ 1 and 13, MCL 600.151, MCL 600.601, and MCL 767.1. However, venue refers to the location, or forum, in which the trial is to be held. See Gross v. Gen. Motors Corp. , 448 Mich. 147, 156, 528 N.W.2d 707 (1995) ; People v. Webbs , 263 Mich. App. 531, 533, 689 N.W.2d 163 (2004). Therefore, defendant's appellate argument that the trial court erred because Monroe County is not a proper county in which to try this case is clearly a venue challenge.⁴

II. STANDARD OF REVIEW

"A trial court's determination regarding the existence of venue in a criminal prosecution is reviewed de novo." People v. Houthoofd , 487 Mich. 568, 579, 790 N.W.2d 315 (2010). "Venue is a part of every criminal prosecution and must be proved by the prosecutor beyond a reasonable doubt." Webbs , 263 Mich. App. at 533, 689 N.W.2d 163. "A trial court's ruling addressing a motion to dismiss is reviewed for an abuse of discretion." People v. Lewis , 302 Mich. App. 338, 341, 839 N.W.2d 37 (2013). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Id . (quotation marks and citation omitted).

Issues involving statutory interpretation are reviewed de novo. Houthoofd , 487 Mich. at 579, 790 N.W.2d 315. "The primary purpose of a court when construing a statute is to discern and give effect to the Legislature's intent." People v. Rivera , 301 Mich. App. 188, 192, 835 N.W.2d 464 (2013). "We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed—no further judicial construction is required or permitted, and the statute must be enforced as written." People v. Williams , 475 Mich. 245, 250, 716 N.W.2d 208 (2006) (quotation marks and citation omitted). The words in a statute are interpreted "in light of their ordinary meaning and their context within the statute...." People v. Peltola , 489 Mich. 174, 181, 803 N.W.2d 140 (2011).

III. ANALYSIS

"The general venue rule is that defendants should be tried in the county where the crime was committed." Houthoofd , 487 Mich. at 579, 790 N.W.2d 315. "[E]xcept as the legislature for the furtherance of justice has otherwise provided reasonably and within the requirements of due process, the trial should be by a jury of the county or city where the offense was committed." Id . (quotation marks and citation omitted; alteration in original).

Accordingly, to determine the county in which venue is proper, it is necessary to determine the county where the offense was committed. This determination in turn requires an examination of the statute that defendant was charged with violating.

The crime of delivery of a controlled substance causing death is defined in MCL 750.317a, which provides as follows:

A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code, 1978 PA 368, MCL 333.7401, that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.

In People v. Plunkett , 485 Mich. 50, 60, 780 N.W.2d 280 (2010), our Supreme Court explained that

[i]t is clear from the plain language of the statute that MCL 750.317a provides an additional punishment for persons who "deliver[ ]" a controlled substance in violation of MCL 333.7401 when that substance is subsequently consumed by "any ... person" and it causes that person's death. It punishes an individual's role in placing the controlled substance in the stream of commerce, even when that individual is not directly linked to the resultant death.

Consequently, MCL 750.317a is a general intent crime, and as such does not require the intent that death occur from the controlled substance first delivered in violation of MCL 333.7401. Rather, the general intent required to violate MCL 750.317a is identical to the general intent required to violate MCL 333.7401(2)(a) : the delivery of a schedule 1 or 2 controlled substance. [First emphasis added; other alterations in original.]

Thus, MCL 750.317a is properly understood as providing a penalty enhancement when a defendant's criminal act —the delivery of a controlled substance in violation of MCL 333.7401 —has the result or effect of causing a death to any other individual. It is also clear, however, that a defendant's criminal act is complete upon the delivery of the controlled substance. Criminal liability has attached at that point. The effects of that completed action merely determine the degree of the penalty that a defendant will face despite the fact that a defendant need not commit any further acts causing the occurrence of any specific result (such as a death by drug overdose). In light of the plain language of the statute, establishing a defendant's violation of MCL 750.317a requires the prosecution to prove (1) the defendant's act of delivering a controlled substance in violation of MCL 333.7401 and (2) the effect that a person died as a result of consuming the controlled substance.

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