STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 6, 2011 v No Jackson Circuit Court JEFFERY RICHARD JONES, LC No FH Defendant-Appellant. Before: BECKERING, P.J., and TALBOT and OWENS, JJ. PER CURIAM. Following a jury trial, defendant was convicted of possession of 50 or more but less than 450 grams of a controlled substance (methadone and oxycodone), MCL (2)(a)(iii), and possession with intent to deliver marijuana, MCL (2)(d)(iii). He was sentenced as a fourth habitual offender to 120 to 270 months in prison for the controlled substance conviction and to 120 to 180 months in prison for the marijuana conviction. Defendant appeals as of right. We reverse and remand for further proceedings. After receiving a tip, officers proceeded to a home where defendant lived with Lonnie Webb to knock and talk. They smelled marijuana. Defendant admitted that he and David Rowley, who did not live at the residence, had been smoking marijuana and that Rowley was flushing marijuana down the toilet. They were detained and a wad of cash, small digital scale, and cell phone were found on defendant s person. During the execution of a subsequent search warrant, officers found a marijuana bud in the bathroom, a trap door that led to the basement, and a small safe in a crawl space. The safe contained about a pound of marijuana in two Ziploc bags and more Ziploc baggies containing pills. Specifically, it contained 368 Diazepam pills; two quantities totaling 112 oxycodone pills; 137 methadone pills; 103 dihydrocodeine pills; and 108 Adderall pills. There were also 42 unidentified pills, which were apparently found elsewhere in the residence. The first quantity of oxycodone weighed grams, whereas the second quantity weighed grams, for a total of grams. The methadone weighed grams. The total for all three quantities was grams. Defendant first argues that the quantities of oxycodone and methadone were improperly aggregated. He maintains that he should have been charged with possession of 25 or more but less than 50 grams of a mixture containing oxycodone and possession of 25 or more but less than -1-

2 50 grams of a mixture containing methadone, rather than possession of 50 or more but less than 450 grams of the combined controlled substances. We agree. The determination of this issue requires interpretation of MCL This Court reviews statutory interpretation questions de novo. People v Plunkett, 485 Mich 50, 58; 780 NW2d 280 (2010). When interpreting a statute, courts must ascertain the legislative intent that may reasonably be inferred from the words expressed in the statute. This requires courts to consider the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme. Plunkett, 485 Mich at 58 (citations omitted). MCL provides in pertinent part: (1) A person shall not knowingly or intentionally possess a controlled substance... unless the controlled substance... was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner s professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and: * * * (iii) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $250,000.00, or both. (iv) Which is in an amount of 25 grams or more, but less than 50 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both. Both oxycodone and methadone are controlled substances that are included in schedule 2. See MCL Oxycodone is included in MCL (a)(i), whereas methadone is separately listed in MCL (b). In People v Green, 196 Mich App 593; 493 NW2d 478 (1992), the defendant was convicted under MCL (2)(a)(v) of separate charges of possession of less than twentyfive grams of cocaine and possession of less than twenty-five grams of heroin. The charges involved trace amounts of the two drugs and arose out of the same transaction. The defendant argued that he was twice placed in jeopardy by the separate charges. This Court disagreed, holding: It is clear from the language employed in 7403 that the Legislature intended the imposition of criminal liability to turn on the consideration of two separate -2-

3 factors. The first factor is the amount of a controlled substance possessed, as evidenced by the punishment provisions that authorize the imposition of increasingly severe punishments as the amount of controlled substance possessed increases.... The second factor is the type of controlled substance possessed.... [T]he present statutory provisions consistently refer to the contraband in a singular form: a controlled substance, the controlled substance, a narcotic drug, that controlled substance. Additionally, the Legislature s use of the phrase any mixture containing that controlled substance suggests to us that the Legislature intended that punishment be imposed on the basis of the amount of a specific controlled substance possessed, with the implication being that possession of different types of controlled substances warrants punishment for each particular controlled substance possessed. [196 Mich App at (emphasis added).] The prosecutor argues that defendant was properly charged with possession of 50 or more but less than 450 grams of a controlled substance because both substances were opiate derivatives found in the same place. However, defendant was not charged with possession of opiate derivatives. He was charged with possession of two substances that are listed in separate provisions of MCL (a)(i). The controlled substances at issue were not the same controlled substance. Significantly, the prosecutor would not have been precluded from bringing separate charges based on the distinction between the two substances. Separate charges would not have violated double jeopardy. Moreover, according to the legislative intent as expressed in Green, separate charges based on the amount of the specific controlled substance were contemplated. Thus, defendant should have been charged with one count of possessing 25 to 50 grams of oxycodone and one count of possessing 25 to 50 grams of methadone. The jury necessarily concluded that defendant possessed at least 50 grams of the combined substances, meaning that the jury concluded he possessed both. Since the proofs established that the individual quantities were more than 25 but less than 50 grams, this case must be remanded for entry of a corresponding judgment of conviction. Defendant must be resentenced in accord with his convictions on the two lesser charges. He asserts that he should also be resentenced for the marijuana conviction. This request is made in his brief on appeal but he did not raise the issue at sentencing, in a proper motion for resentencing, or in a separate motion to remand filed in this Court. See MCL (1). However, in People v Jackson, 487 Mich 783; 790 NW2d 340 (2010), the Court held that a proper motion could be made in the brief on appeal where, as here, the entitlement to a remand turns on resolution of an appellate issue. In Jackson, the Court held that, based on the language in MCL (10), the Court shall not remand for resentencing unless there was either an error in scoring [that changes the guideline results] or defendant s sentence was based on inaccurate information. Conversely, this means that the Court is required to remand whenever one of these two circumstances is present. Thus, the Court may not ignore the two criteria for when a case should be remanded merely because the sentence is within the appropriate guidelines range. When the defendant s -3-

4 sentence is based on an error in scoring or based on inaccurate information, a remand for resentencing is required. [Slip op at (footnotes omitted; emphasis in original).] MCL (2)(e)(iii) requires that a presentence report must include a computation that determines the recommended minimum sentence range for the crime having the highest crime class. Based on this statute, the sentencing guidelines were scored for defendant s possession of oxycodone and methadone conviction, which, given the quantity involved, was a Class B offense. See MCL m; MCL (2)(a)(iii). Once the judgment is modified to reflect possession of the lesser amounts, these will be Class G felonies. See MCL (2)(a)(iv); MCL m. However, defendant s marijuana conviction, which was based on MCL (2)(d)(iii), would be a Class F offense. See MCL m. Defendant s minimum sentence of 120 months for the marijuana conviction would be outside a properly scored guidelines range. The highest score possible for a Class F offense is 17 to 30 months. See MCL However, for a fourth habitual offender, the maximum is to be increased 100 percent. See MCL (3)(c). Thus, the applicable range for defendant s minimum sentence on the marijuana conviction would be 17 to 60 months. Defendant is therefore entitled to resentencing on the marijuana conviction. Defendant next argues that evidence of the dihydrocodeine, Adderall, Diazepam and the unidentified substance should not have been admitted because he was not charged with possession of these substances. However, defendant affirmatively stated that he did not object when these substances were admitted into evidence. At the time of admission, Diazepam and Adderall were referred to by name. Defendant objected to the relevance of the dihydrocodeine, Adderall, Diazepam, given that he was not charged with possession of these substances, when a forensic scientist with the Michigan State Police was called upon to identify the substances. He now maintains that their admission violated MRE 404(b). Since defendant waived objection to the admission of the substances, he may not raise their admission as an error on appeal. People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000), quoting People v Fetterley, 229 Mich App 511, 520; 583 NW2d 199 (1998). We note that the significance of the admission of these substances was the sheer number of pills. The names of the drugs were of little consequence. Accordingly, there was no prejudice resulting from the subsequent identification of these drugs. Finally, defendant argues that it was error to give an aiding and abetting instruction. To the extent a jury instruction involves an issue of law, review is de novo. However, a trial court s determination whether an instruction was applicable to the facts of the case is reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). Defendant argues that the theory of the prosecution s case had been direct possession. However, the defense was the implication that someone else possessed the substances found in the safe. Positing that allowing Rowley to store drugs at the home would be aiding and abetting his possession, the trial court concluded that the prosecution was entitled to the instruction. An aiding and abetting instruction is proper where there is evidence that (1) more than one person was involved in the commission of the crime, and (2) the defendant s role in the crime may have been less than direct participation in the wrongdoing. People v Head, 211 Mich -4-

5 App 205, 211; 535 NW2d 563 (1995). In Head, the Court concluded that there was sufficient evidence to establish constructive possession of drugs where the defendant admitted living at the home, was lying on the bed in a bedroom where the drugs were in plain view with the defendant s wallet nearby, and the bedroom contained men s clothing. The defense was that the drugs belonged to another. This Court also found that an aiding and abetting instruction was proper, stating: Defendant s theory of the case was that the drugs belonged to his girlfriend or another party. The prosecutor requested an instruction on the theory that, even if the drugs and paraphernalia belonged to someone else, defendant assisted that person by providing a storage place for them. We find no error in the judge s decision to instruct the jury on this issue. The evidence presented at trial required the judge to give the aiding and abetting instruction. [211 Mich App at ] Defendant attempts to distinguish Head by asserting that, unlike here, the prosecution claimed the defendant was providing the house for the storage of another person s drugs. However, it appears that the primary argument in Head was that the defendant directly or constructively possessed the drugs. Like here, the prosecutor s backup position, in the face of a defense that another was responsible, was that the defendant aided and abetted another s possession. There is no meaningful distinction between Head and the instant case. Reversed and remanded for entry of a judgment and resentencing consistent with this opinion. We do not retain jurisdiction. /s/ Jane M. Beckering /s/ Donald S. Owens -5-

6 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 6, 2011 v No Jackson Circuit Court JEFFERY RICHARD JONES, LC No FH Defendant-Appellant. Before: BECKERING, P.J., and TALBOT and OWENS, JJ. TALBOT, J. (concurring). While I am compelled to concur in the majority opinion based on the wording and interpretation of MCL as discussed in People v Green, 196 Mich App 593; 493 NW2d 478 (1992), I write separately to voice my concerns regarding the Green decision and its application. Jeffery Jones contests his conviction pursuant to MCL (2)(a)(iii) for the possession of methadone (39.44 grams) and oxycodone (31.49 grams total), which were combined or aggregated to meet the 50 grams or more weight requirement of the statutory subsection. Jones argues that any convictions for possession of the above drugs should have been separate and not combined, necessitating his resentencing. The relevant statutes involved are MCL and MCL and their interplay. MCL , provides, in pertinent part: (1) A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and: -1-

7 * * * (iii) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $250,000.00, or both. [Emphasis added.] In turn, MCL provides a listing of schedule 2 controlled substances as including: (a) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis: (i) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate excluding nalaxone and its salts, and excluding naltrexone and its salts, but including the following: * * * (b) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, when the existence of these isomers, esters, ethers, and salts is possible within the specific chemical designation.... The drugs involved in Jones conviction are both opiate-based and listed in MCL Specifically, oxycodone is included in MCL (a)(i) and methadone is listed under MCL (b)(i). In Green, the dispositive question was whether the Legislature intended that two convictions might result under 7403(2)(a)(v) for the simultaneous possession of two prohibited substances. Green, 196 Mich App at 595. The defendant in Green was challenging his two counts of a possession of a controlled substance that arose out of a single act involving trace amounts of heroin and cocaine as violating double jeopardy. The Green Court, focusing on the singularity of the statutory wording, interpreted the language of MCL , stating: [T]he Legislature intended the imposition of criminal liability to turn on the consideration of two separate factors. The first factor is the amount of a controlled substance possessed.... The second factor is the type of controlled substance possessed.... The present statutory provisions consistently refer to the contraband in a singular form: a controlled substance, the controlled substance, a narcotic drug, that controlled substance. Additionally, the Legislature s use of the phrase any mixture containing that controlled substance suggests to us that the Legislature intended that punishment be imposed on the basis of the amount of a specific controlled substance possessed, with the implication being that possession of different types of controlled substances warrants punishment for each particular controlled substance possessed. [Green, 196 Mich App at ] -2-

8 My concern is with the restrictive manner in which this statutory language has been interpreted. In drafting this statutory scheme, the Legislature was clearly seeking to address concerns regarding the possession of narcotics and illegal substances by imposing criminal liability for possession or intent to deliver. Based on the graduated penalties imposed, the amount of drugs in a defendant s possession is a significant factor to be considered. 1 The other concern is the type of controlled substance possessed. While Green appears to indicate that possession of different or multiple drugs should warrant independent convictions and punishments, I do not believe that is necessarily the correct interpretation, or the intent, of the statute. Green references the type of controlled substance possessed. Contrary to use of the term type in Green, the type of drug possessed does not necessarily reference a specific variety of the drug, but merely the classification or inherent characteristics of the controlled substance. This is consistent with the definition of the term type, which means a class, group, or category of things... sharing one or more characteristics; a thing... regarded as a member of a class or category; kind; sort. Random House Webster s College Dictionary (1997). In this case, both the oxycodene and methadone are each deemed to be a Class 2 controlled substance. They are opiates or opiate-derivatives, thereby making them the same type of controlled substance. This is also consistent with the definitions of the terms substance as [t]he essence of something; the essential quality of something, as opposed to its mere form and controlled substance as encompassing [a]ny type of drug whose possession and use is regulated by law.... Black s Law Dictionary (9 th ed). I would find the language of MCL to be less restrictive than that suggested by Green, and would understand that the statutory reference to [a] controlled substance classified in schedule 1 or 2, MCL (2)(a), and any mixture containing that substance, MCL (2(a)(iii), to not singularly reference a specific pill designation, but rather the broader classification or type of drug involved. 2 A broader reading of this statutory language would also serve to follow the reasoning in other case law regarding the aggregation of drugs for weight. For instance, aggregation is not precluded if two mixtures are possessed or delivered and both contain a controlled substance. Gillespie, Michigan Criminal Law and Procedure (2010), 5:103, citing People v Velasquez, 125 Mich App 1; 335 NW2d 705 (1983). Specifically, in 1 It is well recognized that [i]ntent to deliver can be inferred from the quantity of the controlled substance in the defendant's possession and from the way in which the controlled substance is packaged. People v Fetterley, 229 Mich App 511, 518; 583 NW2d 199 (1998). 2 I believe that another distinction exists regarding the applicability of Green, based on the actual holding in that case. The Green Court stated, [W]e hold that the statute permits multiple charges and convictions under the circumstances of this case. Green, 196 Mich App at 596 (emphasis added). Notably, the Court did not mandate separate convictions, it merely determined that bringing the charges separately did not violate double jeopardy. -3-

9 cases involving the use of fillers or additives mixed in with an illegal substance this Court has found: In People v Prediger, 110 Mich App 757, 760; 313 NW2d 103 (1981), we held that the weight classifications found in MCL (2)(a); M.S.A (7401)(2)(a) refer to the aggregate weight of a mixture containing a controlled substance and not solely to the weight of a pure controlled substance. Furthermore, this Court upheld these statutory weight classifications against an equal protection challenge in People v Lemble, 103 Mich App 220, 222; 303 NW2d 191 (1981), wherein we held that punishing defendants more severely for possessing greater amounts of any mixture containing a controlled substance was reasonable as the greater the quantity of mixture, whatever the degree of purity, the greater the potential for distribution and harm to society. See also People v Campbell, 115 Mich App 369; 320 NW2d 381 (1982). [People v Puertas, 122 Mich App 626, ; 332 NW2d 399 (1983).] If, under certain conditions, the weight of a controlled substance can be aggregated to include the weight of a non-controlled or legal substance, such as baking soda that is mixed in with the controlled substance, it does not seem unreasonable to include or aggregate specific drugs within the same classification or type of a controlled substance. Such a common-sense approach would better serve to effectuate the statutory intent or purpose to impose greater punishment based on the amount of drugs possessed. To interpret MCL as mandating separate convictions for each individual drug possessed could lead to absurd results in certain factual circumstances and permit a defendant to avoid the intended consequences of possession or delivery of a specific type of controlled substance in significant amounts. /s/ Michael J. Talbot -4-