People v. Tolbert, Docket No. 27047

• Decision Date: 08 August 1977
• Docket Number: Docket No. 27047
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald L. TOLBERT, Defendant-Appellant. 77 Mich.App. 162, 258 N.W.2d 176
• Court: Court of Appeal of Michigan — District of US

Page 176

258 N.W.2d 176

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald L. TOLBERT, Defendant-Appellant.

Docket No. 27047.

77 Mich.App. 162, 258 N.W.2d 176

Court of Appeals of Michigan.

Aug. 8, 1977.

Released for Publication Oct. 17, 1977.

[77 MICHAPP 163] Walker, Troester, Picard, MacNeil & Learman by Ray J. MacNeil, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., for plaintiff-appellee.

[77 MICHAPP 164] Before D. E. HOLBROOK, P. J., and R. B. BURNS and CAVANAGH, JJ.

CAVANAGH, Judge.

On June 3, 1975, a jury found the defendant guilty of possession of heroin with intent to deliver, M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). On September 22, 1975, he was sentenced to a prison term of 10 to 20 years. He appeals as of right.

Under authority of a search warrant, officers of the Saginaw Police Department vice squad searched the defendant's house for narcotics on the evening of December 11, 1974. Upon entry, the police discovered the defendant and two women, Linda Turnbull and May Hampton, in the small, ground-floor bathroom. The occupants were ordered to come out into the livingroom. As they emerged, an officer heard the toilet flushing and rushed into the bathroom. Just as the toilet was about to complete its flush cycle, the officer pulled a hypodermic syringe and a small envelope from the commode. Inside the envelope were found two small aluminum foil packets containing a brownish powder. When the defendant was frisked, another hypodermic syringe was found in his back pocket.

The officers found several small pieces of aluminum foil and two burned bottlecap "cookers" on a table in the attic. They testified that the foil pieces were creased in a manner like that of foil "packets" typically used to enclose heroin.

Expert analysis of the brown powder in the packets found in the bathroom and a residue [77 MICHAPP 165] found in both bottlecaps revealed the presence of heroin in each.

Both women told the police upon their arrest that they did not reside in the house. Papers and envelopes seized during the search indicated that the house was the defendant's residence, and the defendant admitted as much when he testified in his defense.

We cannot agree with the defendant's claim that the evidence was insufficient to charge the jury on the offense of possession of heroin with intent to deliver. Possession of heroin and an accused's intent to deliver may be proved by circumstantial evidence and reasonable inferences therefrom. People v. Abrego, 72 Mich.App. 176, 181, 249 N.W.2d 345, 347-348 (1976); People v. Mumford, 60 Mich.App. 279, 283, 230 N.W.2d 395, 397 (1975). The presence of the heroin cookers and foil papers in the attic of a house resided in solely by the defendant and his three young children is sufficient evidence of his knowing possession of heroin. ¹ Moreover, this evidence indicates that one could reasonably infer that it was defendant, and not the other two women in the bathroom, who had possessed the heroin found there.

Defendant's argument that M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1) (a), forbids only "possession with intent to deliver a usable dose" is convincingly refuted by the specific language of M.C.L.A. § 335.314; M.S.A. § 18.1070(14), which includes in the definition of proscribed controlled substances any substance in which "the existence of these (opiate) isomers, esters, ethers and salts is possible within the specific chemical designation", and by the [77 MICHAPP 166] Supreme Court's rationale in People v. Harrington, 396 Mich. 33, 238 N.W.2d 20 (1976). ²

While the possession of the small amount of heroin found in this raid might not in itself justify a charge on intent to deliver, cf., People v. Peterson, 63 Mich.App. 538, 547, 234 N.W.2d 692, 697 (1975), there were other circumstances from which an inference of the defendant's intent to deliver could be reasonably drawn. The presence of several pre-cut foil packets indicates that the defendant was engaged in more than personal use of the drug. The circumstances of the defendant's arrest suggest that the defendant had been in the process of attempting a heroin delivery at the very moment that the vice squad arrived.

In conference at the close of the evidence, the prosecutor asked for an instruction on aiding and abetting. Defense counsel objected on the ground that there was no evidence that either of the two women had possessed heroin with intent to deliver. The trial court disagreed with defense counsel and instructed the jury by reading the text of M.C.L.A. § 767.39; M.S.A. § 28.979:

[77 MICHAPP 167] "Now, ladies and gentlemen of the jury, we do have a statute which is Michigan Statutes Annotated 28.979. It is a statute that was written to abolish the differences between principal and accessory before the fact or after the fact. It reads as follows:

" 'Abolition of distinction between accessory and principal,

" 'Section 39. Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense, or procures, counsels, aids, or abets in its commission, may hereafter be prosecuted, indicted, tried, and upon conviction be punished as if he had directly committed such offense.' "

Although conviction of the principal is no longer necessary to charge an accessory, an aiding and abetting instruction may not be given absent proof of the guilt of the principal. People v. Akerley, 73 Mich.App. 321, 326, 251 N.W.2d 309, 311 (1977); People v. Laine, 31 Mich.App. 271, 272, 187 N.W.2d 505, 506 (1971), lv. den., 385 Mich. 752 (1971). To prove an accused's guilt as an aider and abettor, it must be shown that the defendant either shared the criminal intent of the principal or aided and abetted knowing that the principal had the requisite criminal intent. People v. Spry, 74 Mich.App. 584, 254 N.W.2d 782 (1977); People v. Penn, 70 Mich.App. 638, 649, 247 N.W.2d 575, 581 (1976). "Notwithstanding the accused aider's intent, such proof is a logical impossibility if proof of the actor's criminal intent is lacking." (Emphasis supplied). People v. Akerley, supra, 73 Mich.App. 326, 251 N.W.2d 311.

There was no evidence that either of the two women arrested with the defendant possessed heroin with the intent to deliver. At most, the evidence would justify an inference that...