People v. Wooster

• Decision Date: 29 August 1985
• Docket Number: Docket Nos. 78382,78383
• Citation: 143 Mich.App. 513,372 N.W.2d 353
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James William WOOSTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 353

372 N.W.2d 353

143 Mich.App. 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James William WOOSTER, Defendant-Appellant.

Docket Nos. 78382, 78383.

Court of Appeals of Michigan.

Submitted March 13, 1985.

Decided June 4, 1985.

Released for Publication Aug. 29, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nick O. Holowka, Pros. Atty., and Dennis F. Murphy, Asst. Pros. Atty., Lapeer, for the People.

George J. Stauch, Jr., Lapeer, for defendant-appellant.

Before SHEPHERD, P.J., and V.J. BRENNAN and JOBES, ^* JJ.

V.J. BRENNAN, Judge.

Following a jury trial held on February 28, 1984, in Lapeer County Circuit Court, the defendant was convicted of delivery of Lysergic Acid Diethylamide (LSD), M.C.L. Sec. 333.7401(1) and (2)(b); M.S.A. Sec. 14.15(7401)(1) and (2)(b). He was sentenced on April 16, 1984, to 36 months' probation, the first six months to be spent in the Lapeer County Jail, and he appeals as of right. (Docket No. 78383).

After a jury trial held in Lapeer County Circuit Court on April 10 and 11, 1984, defendant was convicted of unlawful possession of marijuana with the intent to deliver, M.C.L. Sec. 333.7401(1) and (2)(c); M.S.A. Sec. 14.15(7401)(1) and (2)(c). He was sentenced on April 16, 1984, to serve 4 months in the Lapeer County Jail. His sentence was to be served concurrently to the LSD delivery conviction. Defendant appeals as of right. (Docket no. 78382).

The appeals were consolidated for our review by order of this Court on February 6, 1985.

Common to both appeals is the issue of whether the prosecutor must prove lack of a license or authorization to sell or deliver as an element of the crimes for which defendant was convicted. We hold that lack of a license is not an element for either crime to be proven beyond a reasonable doubt by the prosecution.

M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401) proscribes the delivery of controlled substances. Section 7531 of the Controlled Substances article of the Public Health Code, M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq., precludes a determination that "lack of license" is an element of the crime of delivery of a controlled substance. Section 7531 provides in pertinent part:

"(1) It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.

"(2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption." M.C.L. Sec. 333.7531; M.S.A. Sec. 14.15(7531).

Prior to the adoption of the Public Health Code in 1978, Sec. 41(1) of the Controlled Substances Act of 1971 (M.C.L. Sec. 335.301 et seq.; M.S.A. Sec. 18.1070(1) et seq.), made it "unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance". M.C.L. Sec. 335.341(1); M.S.A. Sec. 18.1070(41)(1). Like Sec. 7531 of the 1978 act, Sec. 56 of the 1971 act removed the responsibility for proving the absence of a license from the prosecution:

"(1) It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it.

"(2) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this act, he is presumed not to be the holder of the registration or form. The burden of proof is upon him to rebut the presumption." M.C.L. Sec. 335.356(1) and (2); M.S.A. Sec. 18.1070(56)(1) and (2).

Pursuant to Sec. 41(1) of the 1971 act, this Court has determined that lack of license or authorization is not an element of the crime of delivery of a controlled substance. People v. Bates, 91 Mich.App. 506, 514, 283 N.W.2d 785 (1979), lv. den. 407 Mich. 930 (1979); People v. Bailey, 85 Mich.App. 594, 596-597, 272 N.W.2d 147 (1978), lv. den. 406 Mich. 1017 (1979); People v. Lyons, 70 Mich.App. 615, 618-619, 247 N.W.2d 314 (1976). Moreover, in both Bates and Bailey, supra, this Court found that Sec. 56 of the 1971 act was not an impermissible shift of the burden of proof to defendant to establish a license. The Bailey Court explained:

"The statutory provisions construed in the case at bar do not vitiate the presumption of innocence--it is presumed that the defendant did not deliver a controlled substance. They do not shift the burden of proof as to any element of the crime--the people must prove beyond a reasonable doubt that the defendant did deliver a controlled substance. And, if the defendant adduces any evidence of authorization, the people must also prove beyond a reasonable doubt that he had no such authorization. Concrete evidence on this latter point is readily available to either party through official documents. Realistically, it is all but inconceivable that even one defendant charged with delivery of a controlled substance, who in fact had authorization to do so, will ever be wrongfully convicted under the Controlled Substances Act." 85 Mich.App. at 598-599, 272 N.W.2d 147.

Defendant's reliance on People v. Stewart (On Rehearing), 400 Mich. 540, 551, 256 N.W.2d 31 (1977), is misguided. Stewart's holding that lack of a license was an element of the crime of sale of narcotics was based upon a differently worded statute which began with the phrase "any person not having a license". M.C.L. Sec. 335.152; M.S.A. Sec. 18.1122, which was repealed by the Controlled Substances Act of 1971.

Defendant's assertion that the prosecutor was required to prove that defendant did not have a license to distribute LSD or marijuana is without merit.

Defendant's next claim is that there was insufficient evidence presented at trial to support a guilty verdict on the charge of delivery of LSD. We disagree. Our review of the record reveals that there was sufficient evidence presented at trial for a rational trier of fact to conclude that the essential elements of the crime were proven beyond a reasonable doubt. Our review also reveals that there was no abuse of discretion in the trial court's admission of evidence of defendant's prior conviction for impeachment purposes in his trial on the marijuana charge. The trial court recognized and exercised its discretion and balanced the factors to be weighed before allowing admission of evidence of the LSD conviction.

Affirmed as to Docket no. 78382 and Docket no. 78383.

JOBES, J., concurs.

SHEPHERD, Presiding Judge, concurring in part; dissenting in part.

I agree that defendant's conviction for delivery of LSD should be affirmed (Docket no. 78383). However, I believe the trial court abused its discretion by admitting evidence of that conviction to impeach defendant in the subsequent trial on the marijuana charge (Docket no....