People v. Robar, 335377
| Citation | 910 N.W.2d 328,321 Mich.App. 106 |
| Decision Date | 24 August 2017 |
| Docket Number | No. 335377,335377 |
| Parties | PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Jason Charles ROBAR, Defendant–Appellee. |
| Court | Court of Appeal of Michigan (US) |
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Dale J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.
Muskegon County Office of the Public Defender (by Thomas G. Oatmen) for defendant.
Before: Gadola, P.J., Talbot, C.J., and Gleicher, J.
This case involves the offense of possession with intent to deliver a controlled substance, as set forth by MCL 333.7401 of the controlled substances act (CSA), MCL 333.7101 et seq. , Article 7 of the Public Health Code, MCL 333.1101 et seq. The prosecution appeals by leave granted1 an order of the trial court containing three rulings. First, the trial court ruled that, under People v. Wolfe , 440 Mich. 508, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992), defendant was entitled to the use of a former version of the applicable model jury instruction, M. Crim. J.I. 12.3, rather than the current version, which was amended effective August 2016. Next, the trial court ruled that, under People v. Gridiron , 185 Mich.App. 395, 460 N.W.2d 908 (1990) ( Gridiron I ),2 the offense of possession of a controlled substance (simple possession), MCL 333.7403, is a lesser included offense of the offense of possession with intent to deliver a controlled substance. The trial court also determined that defendant would be entitled to a directed verdict if he produced evidence of a valid prescription because having a prescription is a defense to prosecution for simple possession under MCL 333.7403(1). Finally, the trial court ruled that, under People v. Pegenau , 447 Mich. 278, 523 N.W.2d 325 (1994), defendant bore the burden to produce some competent evidence of his authority to possess the controlled substances, after which the burden of persuasion would shift to the prosecution to prove that defendant lacked that authority beyond a reasonable doubt. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Defendant is charged with one count of possession with intent to deliver less than 50 grams of a mixture containing acetaminophen and hydrocodone, MCL 333.7401(2)(a)(iv ), and one count of possession with intent to deliver Methylin
, MCL 333.7401(2)(b)(ii ). At the preliminary examination, the parties stipulated that defendant had possessed the controlled substances at issue and that he had admitted to the police that he had intended to sell the substances. Defense counsel indicated that defendant had a valid prescription for both substances, and the prosecution conceded that defendant "has a prescription."3
Defendant moved to dismiss the charges at the preliminary examination, arguing that simple possession, MCL 333.7403(1), is a lesser included offense of possession with intent to deliver a controlled substance under Gridiron I and that having a valid prescription exempts a defendant from prosecution for simple possession. The prosecution argued that Gridiron I was no longer binding because a more recent case, People v. Lucas , 188 Mich.App. 554, 470 N.W.2d 460 (1991), held that simple possession was merely a cognate lesser offense of possession with intent to deliver a controlled substance and that having a valid prescription was not a defense to prosecution for possession with intent to deliver a controlled substance under MCL 333.7401(1). Following a hearing, the district court agreed with the prosecution and bound defendant over to the circuit court on the charged offenses.
Defendant subsequently moved in the circuit court to modify the current model jury instruction, M. Crim. J.I. 12.3, arguing that the instruction mischaracterized the law because it required a defendant to produce evidence that he or she was authorized to deliver a controlled substance to avoid prosecution under MCL 333.7401, while Wolfe required the prosecution to prove that a defendant lacked authority to possess a controlled substance as an element of the crime of possession with intent to deliver a controlled substance. The prosecution responded that the former version of M. Crim. J.I. 12.3 included the element that "the defendant was not legally authorized to possess " the controlled substance, but the instruction was amended in August 2016 to replace the word "possess" with "deliver," which, the prosecution argued, accurately reflected the law as set forth in MCL 333.7401. The prosecution agreed that having a valid prescription exempts a defendant from prosecution for simple possession under the plain language of MCL 333.7403(1) but argued that the plain language of MCL 333.7401(1) does not provide that exemption. Additionally, citing Justice BOYLE'S concurring opinion in Pegenau , the prosecution contended that defendant bore the burden of both production and persuasion under MCL 333.7531(1) to prove that he was authorized to possess and deliver the controlled substances.
The trial court concluded that it was bound by the Wolfe Court's formulation of the elements of the offense of possession with intent to deliver a controlled substance. One of the elements set forth by Wolfe requires the prosecution to show that a defendant was not authorized to possess the controlled substance. The trial court therefore agreed to use the former, rather than the current, version of M. Crim. J.I. 12.3. The trial court also concluded that simple possession is a lesser included offense of possession with intent to deliver a controlled substance under Gridiron I . Therefore, defendant would be entitled to a directed verdict under the possession with intent to deliver a controlled substance statute if he could adequately establish the existence of a valid prescription for each substance because having a valid prescription is a defense to prosecution for simple possession. Finally, the trial court rejected the prosecution's position that MCL 333.7531(1) places the burdens of production and persuasion on a defendant to prove authorization, concluding that under Pegenau , a defendant need only produce some competent evidence of authorization before the burden of persuasion shifts back the prosecution to prove lack of authorization beyond a reasonable doubt.
The prosecution contends that the trial court erred by ruling that defendant was entitled to use the former version of M. Crim. J.I. 12.3 because the current version accurately states the law. We review de novo claims of instructional error involving legal questions and issues of statutory interpretation. People v. Bush , 315 Mich.App. 237, 243, 890 N.W.2d 370 (2016).
A criminal defendant "is entitled to have a properly instructed jury consider the evidence against him or her." People v. Dobek , 274 Mich.App. 58, 82, 732 N.W.2d 546 (2007). Jury instructions must set forth all of the elements of any charged offense and must include any material issues, theories, or defenses supported by the evidence. Bush , 315 Mich.App. at 243, 890 N.W.2d 370. Model jury instructions do not have the force or effect of a court rule, MCR 2.512(D)(1), but pertinent portions of the instructions "must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party," MCR 2.512(D)(2).
The current model jury instruction for possession with intent to deliver a controlled substance is M. Crim. J.I. 12.3, which states, in pertinent part, the following:
Before the August 2016 amendment of M. Crim. J.I. 12.3, Paragraph (6) stated the following:
The Committee on Model Criminal Jury Instructions explained that it amended M. Crim. J.I. 12.3 to "correct the final element" of the instruction. The question before us is whether this amendment accurately reflects Michigan law.
MCL 333.7401 sets forth the offense of possession with intent to deliver a controlled substance and provides, in pertinent part, the following:
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