STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED July 28, 2011 v No. 295950 Washtenaw Circuit Court SOLOMON RAFEAL ABRAMS, LC No. 08-001642-FH Defendant-Appellant. Before: SERVITTO, P.J., and GLEICHER and SHAPIRO, JJ. PER CURIAM. After a bench trial, the trial court convicted defendant of possession with intent to deliver less than five kilograms or 20 plants of marijuana. MCL 333.7401(2)(d)(iii). We affirm, and decide this appeal without oral argument in conformity with MCR 7.214(E). Defendant acknowledged at trial that he had attempted to send a package containing marijuana to his mother in Florida. He maintained that he had intended to give his mother the marijuana as a gift to help her with pain relief. Defendant theorized that because he did not expect remuneration and engaged in no conduct furthering commercial distribution, the trial court should have considered an affirmative defense premised on MCL 333.7410(7), which provides: A person who distributes marihuana without remuneration and not to further commercial distribution and who does not violate subsection (1) is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both, unless the distribution is in accordance with the federal law or the law of this state. Alternatively, defendant claimed that the trial court should have found him guilty of the misdemeanor in MCL 333.7410(7), which constituted a lesser included offense embodied within the crime charged in MCL 333.7401(2)(d)(iii). Whether MCL 333.7410(7) presents a defense to MCL 333.7401(2)(d)(iii) or provides the basis for a lesser included offense comprises a question of law that we review de novo. People v Hill, 486 Mich 658, 665-666; 786 NW2d 601 (2010). The prosecutor charged defendant with possession with intent to deliver marijuana under MCL 333.7401. The misdemeanor marijuana distribution described in MCL 333.7410(7) simply cannot constitute an -1-
affirmative defense to the possession charge levied in this case pursuant to MCL 333.7401. 1 Where one merely possesses marijuana, even if intending to distribute it, but no distribution has taken place, we conclude that a defense cannot be grounded on a statute that applies only to distribution. Consequently, the trial court did not err to the extent that it declined to consider MCL 333.7410(7) as an affirmative defense to the instant possession with intent to distribute charge under MCL 333.7401. The misdemeanor in MCL 333.7410(7) also does not comprise a lesser included offense of possession with intent to distribute marijuana. In People v Smith, 478 Mich 64, 69; 731 NW2d 411 (2007), our Supreme Court summarized as follows the legal principles governing whether one offense is a lesser included offense of another: MCL 768.32(1) provides: Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense. In [People v Cornell, 466 Mich 335, 354; 646 NW2d 127 (2002)], this Court approved of the following explanation of the word inferior in MCL 768.32(1): We believe that the word inferior in the statute does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense. The controlling factor is whether the lesser offense can be proved by the same facts that are used to establish the charged offense. [Internal quotation omitted, emphasis added.] This Court then held that an inferior offense under MCL 768.32(1) is limited to necessarily included lesser offenses. Cornell, [466 Mich] at 353-354. In conclusion, we held: [A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it. [Id. at 357.] 1 We need not address whether MCL 333.7410(7) could amount to an affirmative defense in a different context. -2-
Here, MCL 333.7410(7) and the possession with intent to distribute charge pursuant to MCL 333.7401(2)(d)(iii) plainly do not share the same elements. As reflected in CJI 2d 12.3, the elements of possessing a controlled substance with intent to deliver include that (1) the defendant knowingly possessed the specified quantity of marijuana without legal authorization, (2) the defendant knew the substance possessed was marijuana, and (3) the defendant intended to deliver this substance to someone else. By contrast, to prove the misdemeanor in MCL 333.7410(7), the prosecution would have to show, among other requirements, that the defendant distributed marijuana. Distribution is not an element of the charge in this case under MCL 333.7401(2)(d)(iii). Because the elements of MCL 333.7410(7) are not completely subsumed in the instant charge delineated by MCL 333.7401(2)(d)(iii), it cannot qualify as a lesser included offense. Smith, 478 Mich at 71. Stated differently, because a defendant can possibly commit the crime of possessing marijuana with the intent to deliver it without committing the distribution offense set forth in MCL 333.7410(7), MCL 333.7410(7) is not a lesser included offense of MCL 333.7401(2)(d)(iii). Id. We thus conclude that the trial court did not err to the extent that it declined to consider defendant s guilt under MCL 333.7410(7). Affirmed. /s/ Deborah A. Servitto /s/ Elizabeth L. Gleicher -3-
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED July 28, 2011 v No. 295950 Washtenaw Circuit Court SOLOMON RAFEAL ABRAMS, LC No. 08-001642-FH Defendant-Appellant. Before: SERVITTO, P.J., and GLEICHER and SHAPIRO, JJ. SHAPIRO, J. (concurring). I agree with the majority that under People v Cornell, 466 Mich 335, 354; 646 NW2d 127 (2002), MCL 333.7410(7) does not set forth a lesser included offense to MCL 333.7401(2)(d). For one offense to be a lesser included offense of another, the greater offense must include an element not found in the lesser. Id. Although section 7410(7) requires non-remuneration, section 7401(2) does not require remuneration. Defendant asks that we conclude that if the lesser offense has a negative element, i.e., an affirmative lack of a particular factor (such as remuneration) as to which the greater offense is silent, then the lesser offense constitutes a necessarily included offense. While this argument has merit, I cannot say that it is consistent with Cornell. 1 1 I disagree with the majority s view that the use of the word distribution in MCL 333.7410(7) as opposed to possession with intent to deliver under MCL 333.7401(2)(d), is relevant to our determination given the facts of this case. Defendant is charged with having left a package containing marijuana with an overnight shipping service for delivery to his mother. Distribute is defined in MCL 333.7105(5) as to deliver other than by administering or dispensing. Delivery is defined in MCL 333.7105(1) as the actual, constructive or attempted transfer from one person to another of a controlled substance. I fail to see any significant distinction between these words, at least under these facts, and I would reject the view that in adopting MCL 333.7410(7), the Legislature intended to provide for the availability of a misdemeanor penalty for an actual delivery, but not for possession with intent to deliver. -1-
For the same reason, I must reject the claim that non-remuneration is an affirmative defense to MCL 333.7401(2). Had the Legislature wished to remove non-remunerative deliveries of marijuana from that provision, it certainly could have done so. Instead, it established MCL 333.7401(2) to apply to all deliveries, whether remunerative or not, and another solely for non-remunerative deliveries. I read this as leaving the charges for non-remunerative delivery within the discretion of the prosecutor and, in this case, there is no claim that the prosecution abused its discretion. Our research does not reveal any cases of record in which the prosecution brought charges for non-remunerative delivery under MCL 333.7410(7). There could be a number of reasons for this, including that such cases have not been appealed. Alternatively, it may be that some prosecutors have a policy of always charging non-remunerative cases under the felony statute without considering whether to instead charge under the more specific misdemeanor for non-remunerative deliveries. This issue was not raised and we do not foreclose the argument that doing so constitutes an abuse of discretion, given that the Legislature decision to include MCL 333.7410(7) demonstrates its intention that prosecutors at least consider the misdemeanor charge where there is no evidence of present or intended remuneration. 2 /s/ Douglas B. Shapiro 2 Michigan s 1971 Controlled Substances Act, MCL 333.7101 et seq., was modeled upon the Controlled Substances Act authored by the Uniform Laws Commission in 1970. Indeed, Michigan s 1971 enactment appears, with one exception, to be identical to that Uniform Act. The one exception was the addition to the Uniform Act of what is now MCL 333.7410(7). Thus, the Legislature specifically elected to modify the Uniform Act to define a misdemeanor for nonremunerative delivery of marijuana as, at least, an alternative to the felony charge contained within the Uniform Act and enacted as MCL 333.7401. While, under Cornell, this did not create a lesser included offense to the felony charge for marijuana delivery, it would be presumptuous of us to conclude that the Legislature took this unique action with the intent that the misdemeanor charge for non-remunerative deliveries simply be ignored by prosecutors and courts. -2-