People of Michigan v. Romon Berry McBurrows
People of Michigan v. Romon Berry McBurrows
Opinion
*408 In this interlocutory appeal, defendant appeals by leave granted 1 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 *409 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 *345 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 *410 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
,
*411
People v. Webbs
,
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
,
Issues involving statutory interpretation are reviewed de novo.
Houthoofd
,
III. ANALYSIS
"The general venue rule is that defendants should be tried in the county where the crime was committed."
Houthoofd
,
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
,
[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 *413 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.]
*347 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.
Establishing an act in violation of MCL 333.7401 with respect to a Schedule 1 or Schedule 2 controlled substance requires the prosecution to prove that the defendant delivered an amount of the controlled substance with knowledge that he was delivering a controlled
*414
substance.
People v. Collins
,
In this case, the prosecution does not dispute that the alleged drug transaction between Ingall and defendant occurred in Detroit, within Wayne County. Ingall testified at the preliminary examination that while he was in Detroit, he gave defendant $100 in exchange for heroin. Presumably, this heroin was mixed with fentanyl. At that point, defendant's alleged criminal act-delivery of a controlled substance in violation of MCL 333.7401 -was complete.
Plunkett
,
The prosecution argues on appeal that two statutes that provide exceptions to the general rule regarding venue authorize venue in Monroe County, where the death occurred.
First, the prosecution argues that venue is proper in Monroe County under MCL 762.8, which provides that
[w]henever a felony consists or is the culmination of 2 or more acts done in the perpetration of that felony, the *415 felony may be prosecuted in any county where any of those acts were committed or in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect.
In
Houthoofd
,
*348 Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration thereof, said felony may be prosecuted in any county in which any 1 of said acts was committed.
The
Houthoofd
Court held that the statute unambiguously stated that "when a felony consists of two or more acts, venue for prosecution of the felony is proper in any county in which any one of the
acts
was committed" and that the "statute
does not
contemplate venue for prosecution in places where the
effects of the act are felt
...."
Houthoofd
,
In this case, defendant's alleged criminal
act
of delivering a controlled substance was complete upon concluding the transaction with Ingall, and this act took place entirely within Wayne County. There is no allegation that defendant committed any act in Monroe County. Because the alleged crime-with the exception of the sentencing enhancement for the death of
*416
Nicholas-was complete at the point of the sale,
Plunkett
,
Next, the prosecution argues that venue is proper in Monroe County under MCL 762.5, which provides that "[i]f any mortal wound shall be given or other violence or injury shall be inflicted, or any poison shall be administered in 1 county by means whereof death shall ensue in another county, the offense may be prosecuted and punished in either county." In support of this theory of venue, the prosecution relies on our Supreme Court's decision in
People v. Southwick
,
*417 willfully and unlawfully administer[ed] to Aletha Hopps, certain medicines, drugs and substances and ... use[d] certain instruments in and upon the body of the said Aletha Hopps, with intent to procure the miscarriage of the said Aletha Hopps, she the said Aletha Hopps being then and there a pregnant *349 woman, and that the administering of said medicines, drugs and substances and by the use of certain instruments by the said Dr. Charles Southwick as aforesaid not being then and there necessary to preserve the life of said Aletha Hopps. [ Id . at 260,261 N.W. 320 (quotation marks omitted).]
In reaching its conclusion that venue was proper in Oakland County, the
Southwick
Court relied on 1929 CL 17123, a statute substantively identical to the current version of MCL 762.5.
Id
. at 262,
In this case, the prosecution asks this Court to find that for purposes of MCL 762.5, the alleged delivery constituted a mortal wound or injury such that the delivery of heroin containing fentanyl corresponds with the acts undertaken by the defendant in
Southwick
. We begin our analysis of this request by noting that neither MCL 762.5 nor our Supreme Court in
Southwick
defined the terms "wound" or "injury." We typically examine dictionary definitions for terms that are not defined in the statute.
People v. Perkins
,
The prosecution also asks this Court to find that heroin and fentanyl are poisons for purposes of MCL 762.5. The term "poison" is not defined within the statute, nor was this term defined by the Southwick Court. The term is also not defined in the Public Health Code, MCL 333.1101 et seq. ; the Michigan Penal Code, MCL 750.1 et seq. ; or the Code of Criminal Procedure, MCL 760.1 et seq. Turning to a dictionary, a "poison" is "[a]ny substance, either taken internally or applied externally, that is injurious to health or dangerous to life." Stedman's Medical Dictionary (26th ed.).
Although the amount of fentanyl consumed by Nicholas was "dangerous to life" in this case, that does not mean that fentanyl is a per se poison in all cases. Fentanyl is classified as a Schedule 2 controlled substance, MCL 333.7214(b), in part because it has legitimate *419 medical uses. See MCL 333.7213 (stating that a substance shall be placed in Schedule 2 if it is found, among other things, that the "substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions"). In contrast, heroin is not *350 used for medical treatment and is accordingly classified as a Schedule 1 controlled substance. See MCL 333.7212(1)(b) (classifying heroin as a Schedule 1 controlled substance); MCL 333.7211 ("The administrator shall place a substance in schedule 1 if it finds that the substance has high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision."). Although heroin may be injurious to a person's health, the evidence in this case showed that Nicholas's death was caused by fentanyl toxicity rather than by heroin.
Nonetheless, even accepting the argument that a given controlled substance could be considered a poison in a particular case, that does not mean that MCL 762.5 is automatically satisfied such that this statute may be relied on to establish venue when the crime at issue is delivery of a controlled substance causing death. Examining the term "poison" in context,
Peltola
,
*420
Focusing on the use of the word "poison" as a verb is in accordance with the general proposition that for purposes of determining venue, the focus is on the "
act
that constitutes the felony."
Houthoofd
,
In sum, without any evidence that defendant either administered a poison or inflicted *351 a mortal wound to or other violence or injury on Nicholas, MCL 762.5 is inapplicable to this case and does not provide a basis for establishing venue in Monroe County. Therefore, the trial court erred by ruling that venue was proper in Monroe County, the court abused its discretion by and denying defendant's motion to dismiss.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
People v. McBurrows , unpublished order of the Court of Appeals, entered July 13, 2017 (Docket No. 338552).
As discussed in this opinion, defendant's argument is actually predicated on the claim that venue was improper in Monroe County.
McBurrows , unpub. order.
The trial court also properly recognized that defendant's motion actually presented a venue challenge.
1948 CL 762.8.
MCL 750.316(1)(a) provides that a person who commits "[m]urder by means of poison, lying in wait, or any other willful, deliberate, and premediated killing" is guilty of first-degree murder.
MCL 750.436(1)(a) provides that a person shall not
[w]illfully mingle a poison or harmful substance with a food, drink, nonprescription medicine, or pharmaceutical product, or willfully place a poison or harmful substance in a spring, well, reservoir, or public water supply, knowing or having reason to know that the food, drink, nonprescription medicine, pharmaceutical product, or water may be ingested or used by a person to his or her injury.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.