People v. Mass
People v. Mass
Opinion of the Court
Defendant appeals as of right from his jury trial convictions of delivery of more than 225 but less than 650 grams of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), and conspiracy to commit that offense, MCL 750.157a; MSA 28.354(1). Defendant was sentenced to consecutive terms of ten to twenty years’ imprisonment for the convictions. We affirm, but remand for correction of the judgment of sentence.
Defendant argues that the evidence was insufficient to support his convictions because the prosecution presented no evidence that he had knowledge of the quantity of cocaine to be delivered. When reviewing a claim of insufficient evidence, this Court must view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).
Defendant’s challenge to his delivery conviction fails because knowledge of the quantity of the controlled substance is not an essential element of a delivery offense. People v Northrop, 213 Mich App 494, 498; 541 NW2d 275 (1995). Defendant’s challenge to his conspiracy conviction also fails because the prosecution was not required to prove that defendant had knowledge of the quantity of cocaine involved in the transaction. “Establishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective.” People v Blume, 443 Mich 476, 481; 505 NW2d 843 (1993). Therefore, the prosecution must prove that defendant had the specific intent to commit the underlying substantive
Defendant argues that proof of knowledge of the quantity of the cocaine was required by the Supreme Court’s decision in People v Justice (After Remand), 454 Mich 334; 562 NW2d 652 (1997). In that case, the Court held as follows:
To be convicted of conspiracy to possess with intent to deliver a controlled substance, the people must prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his coconspirators possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory minimum as charged to a third person. [Id. at 349.]
Thus, although the substantive offenses of delivery of a controlled substance and possession with intent to deliver a controlled substance do not require proof of knowledge of the quantity of the controlled substance, defendant argues that, according to Justice, to demonstrate a conspiracy, proof of knowledge of quantity is required because the prosecution must prove a specific intent to deliver the statutory minimum quantity as charged. We disagree with this read
Even if we were to agree with defendant’s reading of Justice, however, we would nonetheless conclude that the prosecution did present evidence from which the jury could infer that defendant knew the quantity of the cocaine to be delivered. Defendant concedes
Defendant also argues that the trial court erred in instructing the jury regarding the conspiracy charge because it failed to instruct the jury that it must find that defendant agreed to deliver more than 225 but less than 650 grams of cocaine. Essentially, defendant argues that the jury should have been instructed that the prosecution must prove that defendant knew the quantity of the cocaine involved in the transaction. However, defendant failed to request such an instruction and failed to object to the instructions given. This issue is therefore unpreserved, People v Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996), and, in order to avoid forfeiture of this issue, defend
We find no error in the instructions given. For the reasons advanced above, we conclude that an instruction regarding knowledge of quantity would not have been appropriate because the prosecution was not required to prove that defendant knew the precise quantity of the cocaine involved. However, even if knowledge of the precise quantity were an essential element of the conspiracy charge, we would still conclude that the instructions did not constitute error. We review jury instructions in their entirety to determine whether error requiring reversal exists. People v McIntire, 232 Mich App 71, 115; 591 NW2d 231 (1998). Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected defendant’s rights. People v Daoust, 228 Mich App 1, 14; 577 NW2d 179 (1998). In this case, the court instructed the jury that defendant was charged with crimes involving the delivery of more than 225 but less than 650 grams of cocaine and that defendant must have specifically intended to help deliver the cocaine in order to be guilty of conspiracy. We find no error in these instructions, and defendant has not demonstrated plain error that was outcome determinative. Therefore, defendant has forfeited review of this unpreserved issue.
Defendant next argues that the court erred in instructing the jury on the elements of the delivery charge. Again, defendant failed to object to the instructions given; therefore, this issue is forfeited
(1) [T]he crime charged was committed by the defendant or some other person, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid and encouragement. [People v Turner, 213 Mich App 558, 568; 540 NW2d 728 (1995).]
Here, the trial court instructed the jury as follows:
In this case the defendant is charged with the crime of Delivering Cocaine, or intentionally assisting someone else in committing it. Anyone who intentionally assists someone in committing a crime is as guilty as the person who directly commits it, and can be convicted of that crime as an aider and abettor. To prove this charge the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the alleged crime was actually committed, either by the defendant or someone else. It does not matter whether anyone has been convicted of the crime. Second, that before or during the crime the defendant did something to assist in the commission of the crime. Third, that what the defendant gave - that when the defendant gave his assistance, he intended to help someone else commit the crime. It does not matter how much help, advice or encouragement the defendant gave. However, you must decide whether the defendant intended to help*341 another commit the crime, and whether his help, advice or encouragement actually did help or advise, or encourage the crime. Even if the defendant knew that the alleged crime was planned or was being committed, the mere fact that he was present when it was committed is not enough to prove that he assisted in committing it.
Defendant argues that the court erred because it failed to instruct the jury that the prosecution must prove that defendant intended the crime to be committed or knew that the principal intended to commit it. However, the court instructed the jury that the prosecution must prove that defendant intended to help someone commit the crime. This statement implies an intent that the crime be committed, and we therefore conclude that the instructions given fairly presented the issues and adequately protected defendant’s rights. Daoust, supra at 14. Defendant has forfeited this unpreserved issue because no plain error exists that was outcome determinative.
Defendant also argues that he was denied his constitutional right to due process when the trial court instructed the jury that, in order to convict defendant of conspiracy, it must find that the agreement took place during the period of March 19, 1996, to March 27, 1996, while the felony information stated that the charged crimes occurred on or about March 27, 1996. This issue is also unpreserved because defendant failed to object to the challenged instruction. Even assuming that the instruction constitutes plain error, we conclude that defendant has not demonstrated prejudice, i.e., that the alleged plain error was outcome determinative. Carines, supra at 763-764. We note that the trial court, before giving the challenged instruction, instructed the jury that it must find,
Although not raised by the parties, we note that the judgment of sentence contains an incorrect statutory citation for conspiracy to deliver more than 225 but less than 650 grams of cocaine, repeating the citation for the delivery charge instead of providing the citation for conspiracy, MCL 750.157a; MSA 28.354(1). Accordingly, we remand for the limited purpose of correcting the judgment of sentence. People v Avant, 235 Mich App 499, 520; 597 NW2d 864 (1999). See also MCR 7.216(A)(1); MCR 6.435(A).
Affirmed but remanded for correction of the judgment of sentence. We do not retain jurisdiction.
Concurring in Part
(concurring in part and dissenting in part). On the basis of my reading of People v Justice (After Remand), 454 Mich 334; 562 NW2d 652 (1997), I must respectfully dissent from the majority’s decision to affirm defendant’s conspiracy conviction. I cannot agree that Justice does not require proof of
In Justice, swpra at 349, our Supreme Court listed the elements of the crime “conspiracy to possess with intent to deliver a controlled substance.”
To be convicted of conspiracy to possess with intent to deliver a controlled substance, the people must prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his coconspirators possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory minimum as charged to a third person.
Defendant argues that, under these elements, the prosecution must prove that he intended to deliver the amount charged. The majority disagrees, claiming that a “reasonable interpretation” of the requirement that the people prove “the specific intent to deliver the statutory minimum” is one that merely requires that the actual quantity involved meet the statutory minimum. Under the majority’s view, the people need only prove the specific intent to deliver the controlled substance. I disagree.
Important to the resolution of the present issue is the Supreme Court’s holding that conspiracy requires proof of a specific intent to combine to pursue the
The majority concludes that this interpretation of Justice leads to unreasonable results. While I agree that it is sometimes difficult to prove a defendant’s knowledge of the amount involved in a conspiracy, the Court acknowledged this very problem in Justice. It stated that “the gist of the conspiracy lies in the
Finally, I note that Justice is replete with analysis that confounds the majority’s interpretation. For example, in the opinion’s introductory paragraphs, Justice Riley makes clear that the issue to be discussed is whether there was probable cause to believe that the defendant was “guilty of conspiracy to possess with an intent to deliver more than 650 grams of cocaine . . . .’’Id. at 337. Throughout the opinion, the Court considers whether the evidence supported probable cause to believe that the amount of the controlled substance reached the statutory
Because the jury was not properly instructed regarding the elements of the crime of conspiracy, I cannot find this error harmless. Therefore, I would reverse defendant’s conviction of conspiracy.
I note that the charge here is conspiracy to deliver a controlled substance, rather than conspiracy to possess with intent to deliver a controlled substance. The majority fails to make note of this difference and I discern no meaningful basis upon which to distinguish Justice on this ground for puiposes of this discussion.
The majority cites People v Northrop, 213 Mich App 494, 498; 541 NW2d 275 (1995), but Northrop relies on the reasoning of Cortez.
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