Docket No. 29176.
Decided September 20, 1977.
Appeal from Jackson, James G. Fleming, J. Submitted June 8, 1977, at Lansing. (Docket No. 29176.) Decided September 20, 1977.
Donald F. Beatty was convicted of delivery of a controlled substance. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people. Mark T. Light, for defendant.
Following a bench trial held on January 21, 22 and 29, 1976, defendant was found guilty on February 10, 1976, of delivery of a controlled substance, amphetamines, in violation of MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b). On April 1, 1976, defendant was sentenced to 3-1/2 to 7 years imprisonment. Defendant appeals as of right.
On appeal defendant presents three issues. We will discuss only the third issue, wherein the defendant argues that at trial he proved that he had not delivered amphetamine and could not properly be convicted of delivery of an unspecified salt of amphetamine. Defendant divides this issue into two sub-arguments.
First, defendant asks, "Did the Trial Court err in concluding that any substance containing any quantity of any salt of Amphetamine is prohibited." The record discloses that the trial court in finding the defendant guilty stated:
"I, likewise, take judicial notice of the fact that amphetamines and their salts are prohibited under Michigan's Controlled Substances Act * * *."
The statute under which the defendant was charged and convicted reads in part:
"Sec. 16. The following controlled substances are included in schedule 2:
* * *
"(c) Unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having potential for abuse associated with a stimulant effect on the nervous system:
"(i) Amphetamine, its salts, optical isomers, and salts of its optical isomers.
"(ii) Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers." MCLA 335.316; MSA 18.1070(16).
Defendant argues that amphetamine and its salts are prohibited by the statute only in quantities having a potential for abuse. In this case the defendant admittedly delivered 1,000 tablets, samples of which were analyzed by the people's expert as containing amphetamine or its salts. In People v Busby, 56 Mich. App. 389, 392, 394; 224 N.W.2d 322 (1974), this Court stated that:
"In essence * * * what has been forbidden * * * is the possession of quantities of the prescribed substances capable of being sold or consumed.
* * *
"We therefore hold that quantitative analysis is not required before criminal possession of the drugs or substances allegedly possessed by the defendant may be established."
This rationale applies to delivery as well as possession.
Defendant further argues that the statute provides for exceptions and points out a number of products containing amphetamine or its salts which are in fact excepted or exempted from the statute. Defendant then asserts that "The Trial Court erred in concluding that any substance containing any quantity of any salt of Amphetamine is prohibited". As noted above, however, the trial court's actual determination was simply that "amphetamines and their salts are prohibited".
If the tablets which defendant delivered were, in the given circumstances, excepted or exempted from the statute he would have committed no crime. As we read the statute, however, it creates a general prohibition of the delivery of amphetamine and its salts. The people proved that defendant violated this prohibition. The statute puts the burden on the defendant to show his actions come within an exception. MCLA 335.356(1); MSA 18.1070(56)(1) reads:
"Sec. 56. (1) It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it."
In People v Dean, 74 Mich. App. 19; 253 N.W.2d 344 (1977), this Court held that this statutory provision was constitutionally valid but construed it as putting the burden of going forward with the evidence rather than the burden of persuasion on the defendant. The opinion in Dean relied in part on People v Dempster, 396 Mich. 700, 713-714; 242 N.W.2d 381 (1976), which reads in part:
"[O]nce the state establishes a prima facie case of statutory violation, the burden of going forward, i.e., of injecting some competent evidence of the exempt status * * * shifts to the defendant. However, once the defendant properly injects the issue, the state is obliged to establish the contrary beyond a reasonable doubt."
In Dean, supra, at 27 this Court found that the trial court erred because it "mistakenly forestalled whatever effort defendant might have made to show an applicable exception * * * ". In the present case the trial court did not so forestall the defendant's efforts. Defendant was allowed to present the testimony of his own expert, and in addition submitted proofs to the effect that there were some exceptions and exemptions of products containing amphetamines and amphetamine salts. The trial court's determination that defendant was guilty as charged implicitly found that the tablets delivered by the defendant were not excepted or exempted from the statutory prohibition. Our review of the record convinces us that while defendant introduced evidence that there are exceptions, he introduced no evidence of the exempt status of the tablets he was charged with delivering. We hold that once the people have made a prima facie showing of delivery in violation of the Controlled Substances Act, the defendant in order to meet his burden of showing a statutory exemption or exception must put in some competent evidence that the substance he delivered falls within one of the exempt categories. This the defendant here failed to do. Since the defendant failed to give any evidence that the pills he delivered were within an exception or exemption, and since the defendant was not foreclosed from presenting such evidence, there was no error here.
In the defendant's second subdivision of this issue he asserts that the trial court lacked jurisdiction to try the defendant because the defendant was charged in the information with delivery of amphetamine, and the defendant waived preliminary examination on only the charge of delivery of amphetamine, while the proofs at trial supported and the trial court found the defendant guilty of the charge of delivery of a salt of amphetamine. The trial court's actual words were: "I find Donald Beatty that you are guilty beyond a reasonable doubt of the offense charged in the People's Information."
The information charged defendant with delivery of a controlled substance, amphetamine. The people's proof was such that it did not differentiate between amphetamine or its salts, but defendant correctly pointed out at trial that amphetamine is a liquid, that defendant delivered solid pills, and that therefore these pills must have contained amphetamine salt rather than amphetamine. We believe that the information was sufficient and that there was no fatal variance between the charge and the proof. See People v Adams, 389 Mich. 222, 242-243; 205 N.W.2d 415 (1973), United States v Van Buren, 513 F.2d 1327, 1328 (CA 10, 1975), United States v Parkison, 417 F. Supp. 730, 732-734 (ED Wis, 1976).
We have reviewed the defendant's other assertions of error and find them to be without merit.
DANHOF, C.J., concurred.
The majority state: "[O]nce the people have made a prima facie showing of delivery in violation of the Controlled Substances Act, the defendant in order to meet his burden of showing a statutory exemption or exception must put in some competent evidence that the substance he delivered falls within one of the exempt categories." I would hold that an essential part of the prima facie showing of a violation is to identify exactly the substance delivered. The people did not do so in this case.
The defendant should not be required to come forward with proof under MCLA 335.356; MSA 18.1070(56) until the substance delivered has been specifically identified. See, People v Dean, 74 Mich. App. 19; 253 N.W.2d 344 (1977). The resources needed for precise identification are more readily available to the state than the individual. When an individual's liberty is at stake, the state must utilize those resources.
In this case, the people's expert testified that the tablets delivered by defendant contained a salt of amphetamine, without specifically identifying which of the hundreds of possible salts it might have been. This testimony was given only after the defendant's expert testimony had established that the tablets could not have been amphetamine because that substance occurs only as a liquid or an oil.
The case should be remanded for an evidentiary hearing to determine the exact identity of the substance delivered and its exempt or nonexempt status.