Opinion
Docket No. 77-2193.
Decided August 22, 1978.
Barbara R. Levine, Assistant State Appellate Defender, for defendant on appeal.
Defendant was jury convicted of delivery of heroin contrary to MCL 335.341(1)(a); MSA 18.1070(41)(1)(a) and conspiracy to deliver heroin contrary to MCL 750.157a(a); MSA 28.354(1)(a). He was sentenced to concurrent terms of from 10 to 20 years and appeals as of right.
An understanding of the issues in the present case requires a brief statement of the pertinent facts. Samuel Smith and Helen Smith, husband and wife, jointly own property at 420 South Thirty-First Street, Saginaw, Michigan, which was alleged to have been a "fortress" for the sale of narcotics to middlemen, who in turn sold to consumers. On April 6, 1976, Detective Sergeant Clifford DeFeyter, while acting as an undercover agent under the alias of "Butch", delivered $140 in marked money to one James Choyce. The latter entered the house and returned with two metal foil packets which proved to contain heroin.
About two or three hours later a crew of officers arrived on the scene and observed defendant exiting the home. He was arrested and found to be carrying $849 of which $135 matched the serial numbers of the money given to Choyce by Officer DeFeyter.
A search of the premises, after a warrant was obtained, revealed that people lived there and that various drug paraphernalia, including two bags of a reducing agent, a measuring spoon and a square piece of mirror, were kept in the kitchen and bathroom.
Defendant based his defense on the theory that the evidence did not support the charges set forth in the information. He did not deny the fact that Choyce bought heroin from a person in the house, but claimed that he knew nothing about it. He also argued that he did not know Choyce and consequently never agreed to deliver anything to anybody.
Defendant has presented five issues for consideration.
I.
Defendant first contends that the trial court committed reversible error in failing to direct a verdict of acquittal at the close of the people's case on the ground that the evidence was insufficient to support a conviction on the delivery and conspiracy charges.
For assistance we quote in part the guidelines set forth in 2 Gillespie, Michigan Criminal Law Procedure (1978 rev 2d ed), § 632, p 238:
"Reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense. However, if the prosecution, without the aid of defendant's proofs, does not establish some evidence on every element, a directed verdict for acquittal or a motion to dismiss must be granted. If there is no evidence at all on any one of the elements, the motion must be granted and it is reversible error to fail to do so.
"The test to be applied on a motion for a directed verdict is not whether the evidence presented proves guilt beyond a reasonable doubt but whether there is any evidence at all on each material element of the offense. If there is, then the trial should proceed to conclusion, at which time the fact finder then decides whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt. An appellate court tests the correctness of the denial of a motion to direct a verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty. A reviewing court must determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt.
"In passing on a motion for a directed verdict of acquittal the court may only consider the evidence which has been introduced at the time the motion is made, * * *."
The above rules are set out in: People v DeClerk, 400 Mich. 10, 17; 252 N.W.2d 782 (1977), People v Garcia, 398 Mich. 250, 256; 247 N.W.2d 547 (1976), People v Killingsworth, 80 Mich. App. 45, 48; 263 N.W.2d 278 (1977), People v Trotter, 76 Mich. App. 260, 262; 256 N.W.2d 585 (1977), People v Royal, 62 Mich. App. 756, 758; 233 N.W.2d 860 (1975).
As may be gleaned from the facts, the evidence here was entirely circumstantial and will be governed by the rule promulgated in People v Davenport, 39 Mich. App. 252, 256; 197 N.W.2d 521 (1972):
"The established rule is that where the people's case is based on circumstantial evidence the prosecution has the burden of proving `that there is no innocent theory possible which will, without violation of reason, accord with the facts'." (Citations omitted.)
A similar statement of the rule can be found in People v Jablonski, 70 Mich. App. 218, 225; 245 N.W.2d 571 (1976):
"We agree with defendant that the test was stated in People v Sessions, 58 Mich. 594, 606; 26 N.W. 291 (1886), that where guilt in a criminal matter is sought to be proved by circumstantial evidence, the facts from which the inferences are drawn must be proved beyond any reasonable doubt, and the inferences must be such as will admit of no other rational conclusion."
See People v Ridgeway, 74 Mich. App. 306, 316; 253 N.W.2d 743 (1977).
While a reasonable inference may be drawn from an established fact, inferences cannot be built on inferences. People v Atley, 392 Mich. 298, 314-315; 220 N.W.2d 465 (1974).
Furthermore, a person cannot be convicted on imagination. Brownell v People, 38 Mich. 732, 737 (1878).
Was there a conspiracy between Choyce and defendant to deliver heroin? The record shows that the drug was secured from another person, not defendant, and no evidence was presented which would lead a reasonable person to believe that Smith had any knowledge of the sale to Sgt. DeFeyter.
Therefore, it is difficult to conclude, under these circumstances, that any type of agreement existed between the two men. That being the case, the prosecutor failed to meet the tests as set forth in Atley, supra, at 310-311:
"Therefore, defendant's intent to sell marijuana must be established in the present case, and to establish that intent, there must be evidence of knowledge of the unlawful purpose of sale. To prove the crime of conspiracy, however, it must further be proven that that intent, including that knowledge, was possessed by more than one individual since there can be no conspiracy without a combination of two or more persons. People v DiLaura, 259 Mich. 260; 243 N.W. 49 (1932). Where only one person has knowledge of the unlawful end, there is no combined intent to do what is unlawful. Perkins, On Criminal Law, 545 (1957).
"It must be shown that the respective conspirators intended to further, promote, or cooperate in the unlawful enterprise. The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons. People v Smith, 296 Mich. 176; 295 N.W. 605 (1941); People v Asta, 337 Mich. 590, 611; 60 N.W.2d 472 (1953)." (Emphasis in original.)
The prosecutor attempted during the trial, in view of the joint ownership of the house and the marked money found on defendant, to show that he aided and abetted Choyce's delivery of the heroin to the police officer. Again, this effort is based on inferences. The fact that a person is a joint owner of a certain piece of property does not indicate that he entertained a specific intent to deliver. People v Jerry Johnson, 68 Mich. App. 697, 700; 243 N.W.2d 715 (1976).
Furthermore, it was never established that defendant and Choyce even knew one another. Patently, there could be no aiding and abetting where there were no communications between them.
This Court is fully cognizant of the difficulties often encountered by prosecutors in proving defendants guilty of drug offenses beyond a reasonable doubt. However, courts are bound by the rules as presently established. Except for the marked money, which could have been turned over to defendant by the others in the house for rent, a loan, or other purposes, no evidence was presented to connect Mr. Smith with these charges.
Therefore, having reviewed the evidence in the light most favorable to the people, we hold on authority of Atley, Davenport, Jablonski and Ridgeway that the trial court erred in not granting the motion for a directed verdict as to both charges.
II.
Defendant next contends that he was denied his due process right to be tried by a properly instructed jury since the trial court's instructions as a whole misled the jury as to the proofs necessary for conviction on each offense and that the court erroneously denied a legitimate defense request for clarifying instructions.
Defendant contends that the instructions concerning delivery confused the jury as to whether the delivery inside the house to Choyce or the delivery to the police officer was the one charged in the first count.
The trial judge relied upon the statutory language in defining the term delivery and then summarized as follows:
"[T]he delivery is the mere transfer from one person to another of a controlled substance. That's all that is required to prove this crime."
Counsel objected and requested the following clarifying instruction:
"If the jury finds that on April 6, 1976, Samuel Smith did not aid or abet James Choyce in delivering heroin to a Michigan State Police undercover agent, they must find the defendant, Samuel Smith, not guilty."
The denial of this request was not serious error since the judge, in summarizing the prosecutor's theory of the case, adequately described the charged delivery as that made by Choyce to the officer.
When reviewing claimed errors in the instructions to the jury, this Court reads them in their entirety. People v Benevides, 71 Mich. App. 168, 175-176; 247 N.W.2d 341 (1976).
The instructions dealing with the conspiracy count, however, are another matter. The conspiracy count was described by the court as:
"In count two, he's charged with conspiracy that on April 6, 1976, that he did unlawfully, wickedly, maliciously, and feloniously combine, conspire, confederate, and agree together to commit the crime of delivery of a controlled substance: heroin."
"Criminal conspiracy is a mutual understanding or agreement between two or more persons, express or implied, to do or accomplish some criminal or unlawful act." People v Hintz, 69 Mich. App. 207, 217; 244 N.W.2d 414 (1976).
Obviously, the instruction given omitted the necessary element that the jury must find the conspiracy to have existed between defendant and Choyce and permitted the jury to find guilt even where they found a conspiracy between defendant and someone other than Choyce. This was error as it permitted the jury to convict Mr. Smith of a conspiracy with which he was never charged.
Also, defendant complains that the trial court failed to summarize his theory of the case. This was not error as counsel neglected to make such a request or submit a statement thereof. People v Trammell, 70 Mich. App. 351, 353-354; 247 N.W.2d 311 (1976); GCR 1963, 516.7.
III.
Defendant also argues that the trial court committed reversible error in admitting evidence of other drug purchases at a house co-owned by defendant where such evidence did not show similar acts by him and was not determined to be more probative than prejudicial.
The statute, MCL 768.27; MSA 28.1050, reads:
"In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant."
This legislation, often quoted, provides a vehicle for prosecutors to prove guilt by introducing into evidence other similar acts of the defendant which show motive and intent. It cannot, however, be employed where those acts are committed by others. People v Salata, 79 Mich. App. 415, 420; 262 N.W.2d 844 (1977).
Here, the prior sales were made to Officer DeFeyter by others and no evidence was presented which indicated that the defendant supplied the drugs or participated in the transactions.
When evidence of this type is presented, the trial judge must use his discretion in order "to determine whether any probative value is outweighed by potential prejudice". People v Bledsoe, 46 Mich. App. 558, 560; 208 N.W.2d 545 (1973).
The fact that defendant jointly owned the home would not be proof that he took part in the transactions made by others. Consequently, there was an abuse of discretion since the jury may have relied on this testimony in returning the guilty verdicts.
The consideration of these three issues is dispositive of this appeal and obviates the necessity of considering the remaining two issues raised by defendant.
Reversed. Defendant discharged.
Again, the attention of Michigan prosecuting attorneys is directed to the opinions issued in People v Walma, 26 Mich. App. 326; 182 N.W.2d 110 (1970), and People v Hatfield, 46 Mich. App. 149; 207 N.W.2d 485 (1973).
R.B. BURNS, J., concurs.
D.E. HOLBROOK, JR., P.J., concurs in result only.