Peoplev.Wolfe

Supreme Court of MichiganAug 31, 1992
440 Mich. 508 (Mich. 1992)
440 Mich. 508489 N.W.2d 748

Docket No. 90730.

Argued January 8, 1992 (Calendar No. 8).

Decided August 31, 1992. Amended October 9, 1992, 441 Mich ___.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Michael D. Thomas, Prosecuting Attorney, Laura A. Chappelle, Special Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, for the people.

Marian Kromkowski and Matthew Posner for the defendant.



GRIFFIN, J.

In this case, defendant was convicted by a jury on two counts: possession with intent to deliver less than 50 grams of cocaine, and possession of a firearm during the commission of a felony. Finding the evidence insufficient to support the conviction on the underlying drug charge, the Court of Appeals reversed both convictions. Upon review, we conclude that the evidence was sufficient respecting the first count but insufficient with regard to the second.

MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv).

MCL 750.227b; MSA 28.424(2).

I

Defendant Lemiel David Wolfe and several companions were arrested on December 9, 1987, about two hours after an undercover police officer made a controlled purchase of crack cocaine at a second floor apartment on Sixth Street in the City of Saginaw.

The undercover officer approached the apartment at about 8:30 P.M. and asked for a "$10 rock" of crack cocaine. He then passed two marked $5 bills through an open window and received in exchange a small baggie containing crack cocaine. Shortly thereafter, the undercover officer obtained a warrant, and entered the apartment with several other officers to execute a search. They found six individuals in the apartment — four men, one woman, and a juvenile. In the group were defendant Lemiel Wolfe and Daven Rogers, as well as two other men, Anthony Winstead and Leonard Jones.

Items recovered in the search included a loaded 12-gauge shotgun and an unspecified number of packets of crack cocaine, which appeared to be packaged for individual sale. When the officers entered the back bedroom of the apartment they saw Winstead hovering over an open vent in the floor from which the grate had been removed. Additional packets of crack cocaine then were found beneath the vent in the apartment directly below. The total weight of all the crack cocaine recovered was less than fifty grams.

At trial, officers who participated in the search testified concerning the contents and appearance of the apartment. As they saw it, no one was living in the apartment. It contained only a few items of furniture — a couch, a refrigerator, and a broken television set. The apartment had no running water, and the toilet was not in working condition. It was apparent that the bath tub, partially filled with human excrement, was being used as a toilet.

Defendant Wolfe was arrested, searched, and found to be in possession of $265 in cash, including the two $5 bills that had been used for the controlled cocaine purchase. In addition, he had a beeper and a key to the back door of the apartment. Rogers was also arrested and searched. His possessions included a piece of paper with the number of defendant Wolfe's beeper written on it and an extra shell for the shotgun.

During the trial, Wolfe testified that he lived in Detroit, and that he had traveled to Saginaw to visit a friend, Sharon Jones, whose aunt lived in the first floor apartment directly below the second floor apartment on Sixth Street. The other men found in the second floor apartment were also from Detroit. Wolfe had invited them to Saginaw and instructed them to meet him at the Sixth Street apartment.

Wolfe and Rogers were jointly tried on charges of possession with intent to deliver less than fifty grams of cocaine and felony-firearm. Each was convicted on both counts; however, only the convictions of defendant Wolfe are at issue in this appeal.

Finding the evidence insufficient, the Court of Appeals reversed the conviction of defendant Wolfe for possession with intent to deliver, and explained: "the evidence demonstrates, at best, that defendant was at the wrong place at the wrong time." Then, in view of the absence of a conviction on the principal felony drug charge, the panel also reversed the felony-firearm conviction, finding it unnecessary to review the sufficiency of the evidence with regard to that count. We then granted leave to appeal. 437 Mich. 1047 (1991).

Unpublished opinion per curiam of the Court of Appeals, decided December 19, 1990 (Docket No. 113403), slip op, p 3. In his appeal, defendant also claimed that the trial court erred when it denied his request for a lesser included misdemeanor instruction to be given to the jury. Because the panel found the evidence to be insufficient, it did not consider the merits of this claim and that issue is not before us in this appeal.


A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, section 227, 227a or 230, is guilty of a felony, and shall be imprisoned for 2 years. [MCL 750.227b(1); MSA 28.424(2)(1).]

The panel did note, however, that it considered "the evidence relied upon to support the felony-firearm charge . . . more tenuous than that relied upon to support the drug offense." (Slip op, p 3, n 1.)

II

In determining whether the prosecution has presented sufficient evidence to sustain a conviction, an appellate court is required to apply the standard adopted by this Court in People v Hampton, 407 Mich. 354, 366; 285 N.W.2d 284 (1979), cert den 449 U.S. 885 (1980). There, we stated that a reviewing court "must consider not whether there was any evidence to support the conviction but whether there was sufficient evidence to justify a rational trier of fact in finding guilt beyond a reasonable doubt."

This standard was articulated by the United States Supreme Court in Jackson v Virginia, 443 U.S. 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), and has been applied regularly in the courts of this state. See Hampton, supra, 407 Mich. 366; People v Petrella, 424 Mich. 221, 268; 380 N.W.2d 11 (1985); People v Lewis, 178 Mich. App. 464, 468; 444 N.W.2d 194 (1989). The sufficient evidence requirement is a part of every criminal defendant's due process rights. It is an attempt to give "concrete substance" to those rights, by precluding irrational jury verdicts. Jackson, supra, 443 U.S. 315. As the Jackson Court explained:

The [ In re Winship, 397 U.S. 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970)] doctrine [requiring proof of guilt beyond a reasonable doubt] requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. A "reasonable doubt," at a minimum, is one based upon "reason." Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt. . . . [ 443 U.S. 316-317.]

Of course, appellate courts are not juries, and even when reviewing the sufficiency of the evidence they must not interfere with the jury's role:

[An appellate court] must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. . . . Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony. [ People v Palmer, 392 Mich. 370, 375-376; 220 N.W.2d 393 (1974).]

With such considerations in mind, this Court determined long ago that when an appellate court reviews the evidence supporting a conviction, factual conflicts are to be viewed in a light favorable to the prosecution:

In testing this case we are not required to take that which respondent relies upon and that which would tend against him, and from a comparison thereof determine which was the stronger and better, or deducting the one from the other, say what, if anything, was left. This would be but a weighing of the evidence and was entirely within the province of the jury. Nor are we to take the evidence in the order, question and answer, in which it was given, but finding it where we may, and putting what was most favorable to the prosecution together, and discarding all other, can this Court say it fairly tended to establish the charge made? [ People v Howard, 50 Mich. 239, 242; 15 N.W. 101 (1883); see also People v Chesbro, 300 Mich. 720, 723; 2 N.W.2d 895 (1942); People v Szymanski, 321 Mich. 248, 254; 32 N.W.2d 451 (1948).]

In short, when determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Hampton, supra, 407 Mich. 368; Petrella, supra, 424 Mich. 268.

Typically, the sufficient evidence requirement is stated in terms of the trial court's duty when reviewing a motion for a directed verdict. Hampton, supra, 407 Mich. 368. In this case, no motion for a directed verdict was made on the charge of possession with intent to deliver; however, the failure to make such a motion does not preclude appellate review of the question whether sufficient evidence was presented to support the conviction. People v Patterson, 428 Mich. 502, 514; 410 N.W.2d 733 (1987).

We turn now to consider whether the evidence presented in this case was sufficient.

III

In its opinion, the Court of Appeals concluded that the prosecution had failed to present any evidence of possession with intent to deliver. It stated:

Our review of the record does not, however, indicate any connection between defendant and the cocaine dropped down the vent by Winstead. There is no evidence linking defendant to the prior drug sale to the undercover officer, or that he had given any type of assistance, support, encouragement to anyone regarding the possession or delivery of the cocaine. [Emphasis added. Slip op, p 3.]

We disagree. Viewed in a light most favorable to the prosecution, our review convinces us that the evidence presented at trial was sufficient to permit a rational jury to conclude that defendant Wolfe knowingly possessed the cocaine found at the Sixth Street apartment with the intent to deliver it.

As the Court of Appeals explained, to support a conviction for possession with intent to deliver less than fifty grams of cocaine, it is necessary for the prosecutor to prove four elements: (1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture weighing less than fifty grams, (3) that defendant was not authorized to possess the substance, and (4) that defendant knowingly possessed the cocaine with the intent to deliver. Lewis, supra at 468.

Upon appeal, defendant has challenged the sufficiency of the evidence only with respect to the fourth element — that he knowingly possessed cocaine with intent to deliver. Defendant argued, and the Court of Appeals panel concluded, that he did not possess the cocaine or intend to deliver it to anyone. In its opinion, the panel recited facts as represented by the testimony of defendant Wolfe:

At trial, defendant testified that he went to Saginaw to visit a friend. He arrived around 6:00 P.M. that evening and went to the Sixth Street apartments to visit Sharon Jones, whose relatives lived in the downstairs apartment. Defendant left shortly thereafter and went to another friend's house where he stayed until he returned to the Sixth Street apartment around 10:00 P.M. When he arrived, defendant spoke briefly with the downstairs residents, then joined his friends upstairs for a party. Defendant went to the local store for food and beer, after collecting money from the others. When he returned, Leonard Jones repaid a prior $20 debt, giving defendant four $5 bills, two of which were the "marked" bills that [Leonard] Jones had received earlier that night from the undercover police officer.

As the group sat and watched television, defendant saw [Leonard] Jones smoking cocaine, but testified he saw no other drugs than that which [Leonard] Jones used. Shortly after his return from the convenience store, the police raided the apartment and arrested defendant, along with several others. [Slip op, p 2.]

Presumably, if the jury had believed defendant's testimony, it would have exonerated him. However, other evidence was presented at the trial which raised serious doubts, to say the least, about the defendant's credibility and his version of the facts. For example, after testifying that the purpose of his trip to Saginaw on March 9, 1987, was to visit Sharon Jones, he later admitted that he spoke with her for only five minutes.

Similarly, at one point in his testimony, defendant claimed that he arrived in Saginaw at 6:00 P.M., but that he did not meet his Detroit associates at the Sixth Street apartment until 8:00 P.M. He also claimed that after he met his Detroit associates at the apartment, he stayed for only a few minutes, then left to visit another friend. He testified that he did not return to the apartment until approximately 10:00 P.M., and that he did not receive the marked $5 bills from Rogers until that time. In contrast, Rogers testified that defendant Wolfe met him and the other men at the apartment at 6:00 or 6:15 P.M., and that Wolfe stayed as long as two hours. Rogers also testified that Leonard Jones gave defendant the marked $5 bills before defendant left the Sixth Street apartment to visit his other friend. Rogers' testimony provided evidence that allowed the jury to infer that Wolfe was at the apartment for most of the evening, and that he was there when the sale of crack cocaine was made to the officer.

Rogers testified as follows:


Q.
He [Wolfe] testified that it was about 8:00 o'clock when he saw you. Is he correct?

A.
I don't really know what — really what time it was, but when we got there, it was about 6:00 and when we seen him standing outside.

* * *

Q.
And how long after he [Wolfe] came back up did he stay upstairs with you?
A. A good little while.
Q.
How long is a "good little while"?
A.
I'd say an hour, two hours.

Further, there was evidence that contradicted defendant's claim that when the officers arrived to search the apartment he was there just drinking beer and watching television with friends. The testimony of the police officers was that the television set was broken, and that the condition of the apartment was, at best, ill-suited for an evening of socializing with friends. The apartment had no running water and no toilet facilities.

Finally, there was evidence that contradicted Wolfe's insistence that a key found in his possession did not fit the lock on the back door of the second floor apartment. Wolfe testified that the key was for the door to his mother's residence in Detroit. However, one of the officers testified that he tested the key in the lock of the back door of the Sixth Street apartment and that the key fit that lock.

Because the jury, unlike the Court of Appeals, had the opportunity to observe the demeanor of the witnesses in assessing their credibility, certainly it was not irrational for the jury to reject Wolfe's version of the facts in favor of the evidence offered by Rogers and the police officers. Nevertheless, because doubt about credibility is not a substitute for evidence of guilt, we move now to a review of the evidence related to the fourth and critical element of the crime. As noted above, this element, knowing possession with intent to deliver, has two components, (1) possession and (2) intent. See CJI2d 12.3. We shall consider separately the evidence adduced in support of each of these components.

A

A person need not have actual physical possession of a controlled substance to be guilty of possessing it. Possession may be either actual or constructive. People v Harper, 365 Mich. 494, 506-507; 113 N.W.2d 808 (1962), cert den 371 U.S. 930 (1962); see also People v Mumford, 60 Mich. App. 279, 282-283; 230 N.W.2d 395 (1975). Likewise, possession may be found even when the defendant is not the owner of recovered narcotics. Id. See also People v Germaine, 234 Mich. 623, 627; 208 N.W. 705 (1926). Moreover, possession may be joint, with more than one person actually or constructively possessing a controlled substance. Id. See also People v Williams, 188 Mich. App. 54, 57; 469 N.W.2d 4 (1991).

In this case, there was no direct evidence that defendant Wolfe actually possessed the cocaine. Rather, the evidence produced at trial showed that he constructively possessed the cocaine, i.e., that he "had the right to exercise control of the cocaine and knew that it was present." Germaine, supra at 627; Mumford, supra at 282. The courts have frequently addressed the concept of constructive possession and the link between a defendant and narcotics that must be shown to establish constructive possession. It is well established that a person's presence, by itself, at a location where drugs are found is insufficient to prove constructive possession. See, e.g., Harper, supra at 500; People v Summers, 68 Mich. App. 571, 581-582; 243 N.W.2d 689 (1976); United States v Castillo, 844 F.2d 1379, 1392 (CA 9, 1988); United States v Rackley, 742 F.2d 1266, 1271 (CA 11, 1984). Instead, some additional connection between the defendant and the contraband must be shown. Castillo, supra, 844 F.2d 1392, citing United States v Disla, 805 F.2d 1340 (CA 9, 1986).

Any one of various factors may be sufficient under given circumstances to establish this connection. For example, constructive possession of cocaine was shown in Rackley, supra, where, in addition to the defendant's presence at the location where the cocaine was found, traces of cocaine were discovered on shirts stored in his pickup truck. 742 F.2d 1272. In Thompson v United States, 567 A.2d 907, 908-909 (DC App, 1989), constructive possession was shown where the defendant was found in a sparsely furnished apartment that contained cocaine packets and large sums of money lying about in plain view. In United States v Perez-Paredes, 678 F. Supp. 259, 263 (SD Fla, 1988), constructive possession of cocaine was established when the defendant drove a codefendant to a location where cocaine was being processed and then remained at that location despite the obvious and nauseating smell of ether, which is an integral component in the processing of cocaine. As these cases suggest, constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband. Rackley, 742 F.2d 1272. The court in Disla explained:

We have stated that constructive possession may be demonstrated by direct or circumstantial evidence that the defendant had the power to dispose of the drug, or "the ability to produce the drug . . .," or that the defendant had the "exclusive control or dominion over property on which contraband narcotics are found. . . ." Constructive possession may also be proven by the defendant's participation in a "joint venture" to possess a controlled substance. The ultimate question is whether, viewing the evidence in a light most favorable to the government, the evidence establishes a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised a dominion and control over the substance. [805 F.2d 1350 (citations omitted). See also Summers, supra, 68 Mich. App. 584. ]

In this case, at least three factors were shown that linked the defendant with the crack cocaine found at the Sixth Street apartment.

First, there was evidence that defendant Wolfe was in control of the premises where the drugs were found. Wolfe testified that he invited the other men to Saginaw and arranged to meet them at the Sixth Street apartment. He testified that the others who came from Detroit that day did not know where the apartment was located. Defendant Wolfe planned to show them where it was, and, as Rogers testified, he did show them. According to Rogers, he and the others were flagged down by Wolfe from the porch of the apartment when he saw them approaching from the street. Further, Wolfe was the only person found to have a key to the apartment. Surely, it was reasonable for the jury to infer that the evidence "demonstrated more than [Wolfe's] mere presence at the apartment as a casual invitee." Castillo, supra, 844 F.2d 1393. Indeed, because testimony of the officers supported the conclusion that Wolfe had the only key to the apartment and was the only one of the men from Detroit who knew the precise location of the apartment, a rational jury could logically have inferred from all the circumstances that, among those found in the apartment, Wolfe was the one with control over the premises.

Second, Wolfe fled with the other men into a back bedroom when the police entered the apartment to search it. There was evidence that attempts were being made in that bedroom to conceal the crack cocaine. In Williams, supra, the Court of Appeals determined that sufficient evidence of possession was shown when "defendant was discovered by police officers in an abandoned home, crouching over a can containing packets of cocaine in an apparent attempt to destroy them." 188 Mich. App. 57.

Third, there was substantial evidence that Wolfe was working with the other men in this crack-selling operation. Evidence was presented that a sale of similarly packaged cocaine had been made from the apartment earlier in the evening and that Wolfe was involved in that sale. The undercover officer who purchased the crack heard other voices in the apartment at the time of the purchase. Rogers testified that he and Wolfe were at the apartment around the time of the sale. Wolfe subsequently was found in possession of the two $5 bills that were used to purchase the cocaine. Further, Wolfe admitted that he knew there was crack cocaine in the apartment. More significantly, Wolfe arranged the meeting in Saginaw at the apartment. Although he denied it, one of the officers testified that Wolfe was in possession of a beeper at the time of the search. It would be reasonable to infer that he carried the beeper to stay in contact with the other men who traveled together from Detroit and were shown to have the number of that beeper. In light of these facts, we cannot agree with the Court of Appeals that there was "no evidence linking defendant to the prior drug sale to the undercover officer," nor can we agree that the prosecution failed to provide "any connection" between defendant Wolfe and the cocaine found in the apartment. Because strong evidence was presented connecting Wolfe with the vacant apartment, the crack cocaine in the apartment, and the other men in the apartment (at least one of whom unquestionably sold cocaine from the apartment), a rational jury could have concluded that Wolfe knew the cocaine was present, and that he had the right to exercise control over it.

Rogers testified as follows:


Q.
Okay. My question to you is: Between the first and the second time that you went to the store . . .
A. Uh-huh.

Q.
. . . when you were upstairs with Mr. Wolfe, Leonard Jones and Anthony Winstead, did you see Detective Berg come into that address?
A. No.

Q.
But the four of you were upstairs; is that correct?
A. Right.

Wolfe testified as follows:


Q.
Now we've heard a lot of testimony concerning crack cocaine in the premises. When you were there on 318 South Sixth Street, did you see any crack cocaine there?

A.
I seen a little, but I didn't see a whole lot. Like that, that showed up in Court.

B

Just as proof of actual possession of narcotics is not necessary to prove possession, actual delivery of narcotics is not required to prove intent to deliver. Intent to deliver has been inferred from the quantity of narcotics in a defendant's possession, from the way in which those narcotics are packaged, and from other circumstances surrounding the arrest. See United States v Montes-Cardenas, 746 F.2d 771, 779 (CA 11, 1984); Mumford, supra, 60 Mich. App. 283; People v Delongchamps, 103 Mich. App. 151, 160; 302 N.W.2d 626 (1981); People v Gay, 149 Mich. App. 468; 386 N.W.2d 556 (1986).

In this case, uncontradicted evidence was presented that cocaine was sold from the apartment. There was evidence that the recovered crack cocaine was packaged for sale in individual envelopes. None of the evidence suggested that the cocaine was possessed simply for personal use. No glass pipes or other paraphernalia typically used to smoke cocaine were found. Rather, all of the evidence indicated that the cocaine was possessed with the intent of selling it.

Equally compelling evidence was presented that Wolfe was one of those who intended to sell the cocaine. Defendant Wolfe arranged the meeting at the apartment in Saginaw. Among those who came from Detroit, he was the only one who knew the precise location of the apartment. He was the only person found to have a key to the apartment. He was in possession of a beeper; Rogers had the number of that beeper. According to an expert who testified at trial, beepers are commonly used in the drug trade. Wolfe was found in possession of the two $5 bills that were used in the controlled cocaine purchase, as well as $255, mostly in bills of small denomination. Taken together, these pieces of evidence support much more than an inference that Wolfe simply was "at the wrong place at the wrong time." Indeed, Wolfe's possession of the marked money, coupled with his exclusive knowledge of the location of the vacant apartment and his possession of the only key to the apartment, suggest that Wolfe was a principal or primary figure in this cocaine selling operation. It is reasonable to infer that Wolfe was given the money from the controlled sale (and perhaps other drug sales) because he was in charge of this crack house in Saginaw. In short, viewed in a light most favorable to the prosecution, the evidence permits the inference that Wolfe arranged the March 9 meeting at this uninhabited and uninhabitable apartment with the intent to participate in the activity for which the apartment was ideally suited — the sale of crack cocaine.

Although the evidence of possession with intent to deliver in this case was circumstantial, we conclude that it is sufficient. Possession with intent to deliver can be established by circumstantial evidence and reasonable inferences arising from that evidence, just as it can be established by direct evidence. Peterson v Oceana Circuit Judge, 243 Mich. 215, 217; 219 N.W. 934 (1928); People v Maliskey, 77 Mich. App. 444, 453; 258 N.W.2d 512 (1977). See also Montes-Cardenas, supra, 746 F.2d 778; Castillo, supra, 844 F.2d 1392; State v Salas, 231 Neb. 471, 473-474; 436 N.W.2d 547 (1989); State v Poellinger, 153 Wis.2d 493, 503-504; 451 N.W.2d 752 (1990). Indeed, we agree with the Supreme Court of Wisconsin that "circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence." Id. at 501-502. For this reason, inferences drawn from circumstantial evidence are reviewed in the same manner as those drawn from direct evidence.

On the basis of our review of the evidence, we conclude that the jury could have rationally concluded that Wolfe's guilt of possession with intent to deliver less than fifty grams of cocaine had been proven beyond a reasonable doubt.

In this appeal, the prosecution argues that the Court of Appeals imposed an improper burden on the people by applying the standard articulated in People v Davenport, 39 Mich. App. 252, 256; 197 N.W.2d 521 (1972) (requiring the prosecution to negate all reasonable theories consistent with innocence where the evidence is circumstantial). Cf. People v Edgar, 75 Mich. App. 467, 473; 255 N.W.2d 648 (1977); People v Daniels, 163 Mich. App. 703, 707; 415 N.W.2d 282 (1987); People v Corbett, 97 Mich. App. 438, 445; 296 N.W.2d 64 (1980); People v Carson, 189 Mich. App. 268, 269; 471 N.W.2d 655 (1991). Although the Court cited Davenport, we do not read its opinion as holding that the prosecution must negate all reasonable theories of innocence. Instead, the Court's decision appears to be based upon a finding that the prosecution failed to provide any evidence of defendant's guilt. For example, the panel stated:


There is no evidence linking defendant to the prior drug sale to the undercover officer, or that he had given any type of assistance, support, encouragement to anyone regarding the possession or delivery of the cocaine. [Slip op, p 3. Emphasis added.]

As our review of the evidence indicates, we disagree with the Court of Appeals and conclude that, viewing the evidence in a light most favorable to the prosecution, sufficient evidence, albeit circumstantial, was presented that would permit a rational trier of fact to conclude that defendant's guilt was proven beyond a reasonable doubt. Under these circumstances and because the issue is not properly raised, we see no need to consider the so-called Davenport standard in this opinion.

IV

Because it reversed defendant's conviction for possession of cocaine with intent to deliver, the Court of Appeals found it unnecessary to consider the sufficiency of the evidence supporting the felony-firearm charge. While we disagree with the Court of Appeals concerning the cocaine possession conviction, we agree that the felony-firearm conviction cannot stand.

The police officers found a shotgun on the living room floor of the apartment. Except for the presence of defendant Wolfe in the apartment, there was no evidence that he had any role in obtaining the gun or in making it available during commission of the underlying felony. Unlike Rogers, Wolfe did not have a shell in his pocket that could be used in the shotgun. Likewise, there was no evidence that Wolfe attempted to use the gun, or even to reach for it, when the police entered the apartment. We conclude that Wolfe's presence in the apartment alone is insufficient proof of possession of a firearm during the commission of a felony.

V

For the reasons stated, we affirm the decision of the Court of Appeals with respect to the felony-firearm charge; we reverse the decision of that Court with respect to the charge of possession of less than 50 grams of cocaine with intent to deliver; and we remand to that Court for its consideration of an issue preserved by defendant but not addressed by the Court of Appeals: whether the trial court abused its discretion in refusing to give an instruction on a lesser misdemeanor offense.

CAVANAGH, C.J., and LEVIN, BRICKLEY, RILEY, and MALLETT, JJ., concurred with GRIFFIN, J.


BOYLE, J. (concurring in part and dissenting in part).

This case presents the Court with the opportunity to clarify the standard for sufficient evidence and its application to convictions of possession with intent to deliver less than fifty grams of cocaine and possession of a firearm during the commission of a felony. The jury relied on circumstantial evidence to convict the defendant without specifying whether liability was direct or based on the prosecutor's aiding and abetting theory. I agree with the majority that, while the Court of Appeals articulated the proper test, it did not properly apply it.

The conclusion of the Court of Appeals is explicable either by a mistaken application of the Hampton standard, or under a theory that because the evidence was circumstantial, the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt. The standard for appellate review of convictions based on circumstantial evidence has been a persistent source of confusion and conflict for decades. Because the failure of the majority to deal fully with the issue presents the potential for further confusion, I write briefly to elaborate upon that issue, and to state that the felony-firearm question should be remanded to the Court of Appeals for resolution in light of the appropriate standard of review.

People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979).

Compare, e.g., People v Davenport, 39 Mich. App. 252; 197 N.W.2d 521 (1972), People v Simpson, 104 Mich. App. 731; 305 N.W.2d 249 (1980), and People v Lewis, 178 Mich. App. 464; 444 N.W.2d 194 (1989), with People v Mumford, 60 Mich. App. 279; 230 N.W.2d 395 (1975), People v Edgar, 75 Mich. App. 467; 255 N.W.2d 648 (1977), and People v Carson, 189 Mich. App. 268; 471 N.W.2d 655 (1991). See also People v Hellenthal, 186 Mich. App. 484; 465 N.W.2d 329 (1990) (the Court held that it is permissible to infer that the defendant was in possession of cocaine and marijuana from the presence of drugs in the defendant's house, a urinalysis test showing a positive result for marijuana, and the defendant's concession that he was aware of drug paraphernalia in his house); People v Spann, 3 Mich. App. 444; 142 N.W.2d 887 (1966) (the Court concluded there was insufficient evidence to sustain a conviction for conspiracy and larceny despite evidence that the defendant, Adams, was in the room from which the property was stolen when he did not work there, was seen marking the property with chalk when the store did not use such a marking system, and was in possession of a car parked near the loading dock at the time the theft occurred); People v Casper, 25 Mich. App. 1; 180 N.W.2d 906 (1970) (after acknowledging that mere presence at the scene of a crime is insufficient evidence, the Court concluded that the defendant's close friendship with a codefendant, his presence at the scene, his prior possession of the murder weapon, his lack of funds as a possible motive, and the finding that he wiped the weapon clean of fingerprints and tried to get rid of it, was sufficient to sustain a conviction); People v Valot, 33 Mich. App. 49; 189 N.W.2d 873 (1971) (the Court affirmed a conviction for possession where the defendant was found in a room with a strong marijuana odor, hand-rolled marijuana cigarettes, a brass water pipe on the table next to the bed occupied by the defendant, and two marijuana cigarette butts on the floor, one next to the defendant's bed); People v Cardenas, 21 Mich. App. 636; 176 N.W.2d 447 (1970) (the Court affirmed a conviction for possession where marijuana was found on the floor of the defendant's car in an area toward which the defendant was seen to bend down); People v Iaconis, 29 Mich. App. 443; 185 N.W.2d 609 (1971), aff'd People v Bercheny, 387 Mich. 431; 196 N.W.2d 767 (1972) (the Court affirmed a conviction for conspiracy on the basis of circumstantial evidence where the police seized drugs and discovered the defendants in proximity after surveillance that had revealed the defendants and others frequently arriving at the premises, staying a short time, employing a ritual to obtain admittance, and leaving the premises in what appeared to be a narcotic stupor); People v Davenport, supra (the Court reversed a conviction for possession on the basis that the evidence regarding possession was circumstantial and the inferences were not sufficiently compelling where the defendant resided in the house where the drugs were found, the bag in which the drugs were located also included a bottle with the defendant's name on it, and a detective testified that he saw the defendant tossing objects into a toilet when he arrived and later retrieved from the toilet three envelopes and loose marijuana).

I

The defendant argues that the Court of Appeals properly applied the sufficiency of evidence rule to reverse his conviction. He emphasizes that the Court of Appeals articulated the proper standard, People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979). Despite the Court of Appeals citation of People v Davenport, 39 Mich. App. 252; 197 N.W.2d 521 (1972), defendant contends that the Court did not rely on Davenport for the proposition that the prosecution must disprove all reasonable theories of innocence. Thus, he urges this Court to avoid discussion of the conflicting lines of authority regarding the prosecutor's burden in a circumstantial evidence case.

The defendant instead seeks to frame the issue as whether the evidence was sufficient to sustain a conviction under Hampton. Stressing that presence alone does not establish criminality, the defendant relies on People v Burrel, 253 Mich. 321; 235 N.W. 170 (1931), and People v Lewis, 178 Mich. App. 464; 444 N.W.2d 194 (1989), to support the argument that more than mere association with an item must be shown to establish possession and that circumstantial evidence in this case is lacking because it shows only that "Wolfe may have had a connection to the previous sale of cocaine." (Emphasis in original.) Emphasizing that the evidence linked Wolfe to the domicile, not to the drugs that were seized, and that others were present and had access to the drugs, the defendant contends that the circumstantial evidence presented is insufficient. Explicit in this argument and the Court of Appeals analysis is the standard of appellate review of a sufficiency claim in respect to a conviction based on circumstantial evidence. Implicit in the argument is the notion that, unless the prosecutor negates theories of innocence, that is, proves that no one else possessed the drugs to the exclusion of the defendant, the jury is not entitled to infer possession with intent to deliver from the facts presented.

The defendant explicitly contends in the brief filed with this Court that the "prosecution has the fair burden of negating reasonable theories advanced at trial" and defines reasonable theories as those "supported with a modicum of evidence."

Thus, the significance of this case is not whether Davenport is expressly referenced for the disputed proposition, but, rather, the appropriate standard of appellate review of the sufficiency of the evidence in criminal convictions. As explained in 2 Wright, Federal Practice Procedure: Criminal (2d ed), § 467, p 655, the standard to be applied by a trial court in deciding a motion for judgment of acquittal is the same standard that an appellate court should apply when reviewing the matter. The theory that there is a special rule applicable to cases based on circumstantial evidence that requires the exclusion of every hypothesis except that of guilt, id. at 655-662, has been rejected by the United States Supreme Court, Holland v United States, 348 U.S. 121, 140; 75 S Ct 127; 99 L Ed 157 (1954), by this Court, People v Bercheny, 387 Mich. 431; 196 N.W.2d 767 (1972), and by virtually every federal circuit court. "It is now understood that a single test applies, regardless of the kind of evidence. . . ." Wright, supra at 662-663.

The majority properly emphasizes that, "when determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." GRIFFIN, J., ante, p 515. This standard underscores the critical differences between the functions of the trier of fact and the reviewing court. The trier of fact must be sure of every element of the crime beyond a reasonable doubt. Thus, the jury must be persuaded that the evidence it believes and upon which it relies is sufficiently strong to exclude a doubt based on reason regarding the defendant's innocence. In State v Poellinger, 153 Wis.2d 493, 504-506; 451 N.W.2d 752 (1990), the Wisconsin Supreme Court identified the importance of the distinction between trial and appellate functions in the context of appellate challenges to convictions based on circumstantial evidence, stating:

To repeat and emphasize that the issue presented on appellate review of claims of insufficiency is distinct from the role of the factfinder, it must be observed that the question of appropriate instruction of a jury where the evidence is wholly circumstantial is not implicated in this appeal.

[T]his court has often failed to maintain the appropriate distinction between the applicability of the hypothesis of innocence rule at the trial court level and the applicability of the reasonable doubt standard of review on appeal. We have recognized that the elimination of hypothesis of innocence is the process by which the trier of fact reaches a determination of guilt beyond a reasonable doubt, and we have mistakenly stated that a conviction based on circumstantial evidence may be sustained on appeal or review if the evidence is sufficiently strong to exclude every reasonable theory of innocence.

* * *

The defendant is, in essence, asking this court to sit as a judge or jury making findings of fact and to apply the hypothesis of innocence rule de novo to the evidence presented at her trial to determine if, in our view, the hypothesis that she did not know that she possessed cocaine is sufficiently reasonable to warrant reversal of her conviction. It is not the role of an appellate court to do that. To the extent that prior decisions of this court have suggested that the hypothesis of innocence rule is in any way applicable in reviewing the sufficiency of the evidence to support a conviction, we . . . take the opportunity presented in this case to clearly state that it is not.

The Ohio Supreme Court aptly observed that the rule that the prosecutor must disprove reasonable innocence theories turns the "standard on its head." State v Jenks, 61 Ohio St.3d 259, 267; 574 N.E.2d 492 (1991). Similarly, although defendant's argument has been presented with exceptional skill, it mistakenly suggests that the negation of reasonable theories consistent with innocence is the standard of appellate review. The result of adopting this suggestion would be to permit the reviewing court to ask whether any reasonable juror could have found the defendant innocent, not, as required under Hampton, whether any reasonable juror could have found the defendant guilty. As this Court explained in People v Fuller, 395 Mich. 451, 455; 236 N.W.2d 58 (1975),

It is for the trier of fact to determine if the prosecution has "negate[d] every reasonable theory consistent with the defendant's innocence of the crime charged."

A

At the appellate level, all reasonable inferences must be drawn in favor of the prosecution, and then, if any reasonable juror could have found guilt beyond a reasonable doubt, the verdict must be upheld. A major focus of the defendant's argument in the Court of Appeals and this Court was that there was insufficient evidence connecting him to the cocaine and the weapon. Relying on People v Millard, 53 Mich. 63, 70; 18 N.W. 562 (1884), the defendant asserted that the prosecution's "case was not only circumstantial and weak, it was too weak to overcome the reasonable theory of innocence Mr. Wolfe presented throughout the trial." The defendant suggests that "even if the Court of Appeals in this case did implicitly apply the circumstantial evidence rule, it was not error to do so." The defendant's argument, the Court of Appeals focus on the circumstantial nature of the evidence, and the panel's conclusion that the evidence demonstrates, "at best, that defendant was at the wrong place at the wrong time," all evidence an approach that transmits the reviewing court into a thirteenth juror weighing inferences against the prosecution. Unpublished opinion per curiam of the Court of Appeals, decided December 19, 1990 (Docket No. 113403). As Chief Judge Julian Cook observed in rejecting a similar circumstantial evidence claim in United States v Turner, 490 F. Supp. 583, 590 (ED Mich, 1979):

It would be improper to . . . hold that when any inference of innocence (arising out of circumstantial evidence) exists, the Court must acquit. . . . To hold otherwise would be to return to the old and rejected "only hypothesis" rule. [Emphasis in the original.]

Several Court of Appeals opinions have misread the holding of People v Millard, supra, and applied it to the issue of sufficiency of the evidence of a crime where more than one person might be participating. In People v Spann, 3 Mich. App. 444, 454; 142 N.W.2d 887 (1966), the Court extended the Millard rule to reverse a conviction where the "prosecution failed to present a theory of the case and proof that excluded all possible theories of innocence explaining [the defendant's] conduct."

See People v Johnson, 4 Mich. App. 205, 207; 144 N.W.2d 646 (1966) (the Court relied on Millard for the proposition that the measure of guilt beyond a reasonable doubt is whether the reviewing court "find[s] evidence in the record which supports a conclusion that negatives every reasonable theory consistent with the defendant's innocence"); People v Morrow, 21 Mich. App. 603; 175 N.W.2d 523 (1970) (the Court relied on Johnson to reject the inference that the defendant's unexplained presence at the scene sufficed to sustain a conviction for larceny).

Millard involved the prosecution of a husband for the death of his wife, allegedly by poisoning, although the evidence regarding death by poisoning was ambiguous. In concluding that a series of rulings led to error in the jury instructions regarding the burden of proof, the Millard Court applied the rule that the prosecutor must prove the corpus delicti before introducing evidence directed at demonstrating that the defendant was the perpetrator. Thus, Millard involved a review of jury instructions, not the sufficiency of evidence. Furthermore, the Millard Court focused on the corpus delicti rule that where "independent evidence was as consistent with death from natural causes as from poison," a conviction cannot be sustained. Perkins, Criminal Law (3d ed), p 147. This Court more recently explained that the corpus delicti of a crime means "the essential wrong" and does not require independent proof of every essential element of the crime charged. People v Williams, 422 Mich. 381, 392; 373 N.W.2d 567 (1985). Rather, we embraced the approach taken by Wigmore, that the corpus delicti includes two elements, the fact of the specific loss and someone's criminality. 7 Wigmore, Evidence (Chadbourn rev), § 2072, pp 524-526.

Other authority has extended the rationale of People v Burrel, supra, to expand the standard of appellate review. The defendant in Burrel was convicted for aiding and abetting the statutory rape of a young woman by a codefendant. The defendant drove his car and, at the direction of the codefendant, picked up a young girl who got into the back seat with the codefendant where they had consensual intercourse. There was no evidence that the defendant was aware that the girl was underage or knew that the codefendant intended statutory rape. The Burrel Court reversed the defendant's conviction on the basis that mere presence is not enough to make a person an aider or abettor. Thus, no inference of the defendant's criminality could logically be drawn from the facts of Burrel. The holding does not authorize reviewing courts to thwart the factfinder from drawing permissible inferences from a defendant's presence at the scene of a crime or at the scene of contraband.

Other panels have applied the same rationale without citing Burrel. See, e.g., People v Lewis, supra (the Court reversed a conviction because it concluded that the "most" that the evidence showed was that the defendant was not the only person who had access to the inside of a house where drugs were sold); People v Simpson, n 2 supra at 733-734.

The rule that mere presence is not enough to conclude that a defendant is guilty does not mean that a jury may not draw any inference regarding possession or intent to deliver from the defendant's presence in compromising circumstances.

B

When applied to a circumstantial evidence case for possession of, or possession with intent to deliver, drugs, and involving more than one potential defendant, an expansive interpretation of the authority of the reviewing court produces the anomalous consequence that each defendant must be acquitted because all might be guilty. Thus, the Court of Appeals here concluded that the evidence merely shows that defendant was one of many who had access to the apartment from which cocaine was sold.

In viewing evidence that could support conflicting inferences, the trier of fact is free to "believe, or disbelieve, in whole or in part, any of the evidence presented." Fuller, supra at 453. The trier of fact can choose among rational inferences from evidence presented and reject an inference consistent with acquittal. Thus, when a reviewing court is presented with a record of historical facts that could support more than one inference, an appellate court is obligated to accept the inference drawn by the trier of fact and defer to that resolution as long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v Virginia, 443 U.S. 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979).

See Poellinger, supra at 505-507.

The appellate court is not authorized to substitute its judgment for that of the factfinder when additional evidence beyond mere presence has been presented. For purposes of appellate review, "`mere proximity to illegal drugs, mere presence on the property where they are located or mere association with persons who do control them, without more, is insufficient to support a finding of possession.'" However, "`such proximity, presence, or association is sufficient when accompanied . . . with testimony connecting the defendant with the incriminating surrounding circumstances.'" United States v Rogers, 921 F.2d 1089, 1093 (CA 10, 1990). In other words, while mere presence cannot result in a conviction, the fact that the prosecution need not disprove all reasonable innocence theories means that the prosecution need not affirmatively prove that no individual other than the defendant had access to the contraband for the conviction to survive appellate challenge. When an appellate court independently reviews the evidence, it asks whether a reasonable juror could have found that the essential elements of the crime were proven beyond a reasonable doubt. Hampton, supra.

See, e.g., People v Fuller, supra at 454 (the defendant's activities "were consonant with a theory of active participation" in the crime as a lookout); People v Dockery, 20 Mich. App. 201, 206, n 1; 173 N.W.2d 726 (1969) (where the defendant knowingly took advantage of the fear induced in the rape victim by two codefendants who had raped her first his "participation goes far beyond . . . mere presence"); People v Valot, n 2 supra (the Court held that the defendant's control of the drugs was reasonably inferred from the fact that he registered for the room, paid the rent, was arrested in the room where the odor of marijuana was strong, and marijuana was found in proximity to the defendant's bed in which he was sleeping).

II

Because it concluded that the underlying felony required reversal, the Court of Appeals did not address the felony-firearm count except to note that the evidence was "tenuous." Slip op, p 3, n 1. The parties here have focused largely on the underlying felony and issues surrounding that count. Rather than decide the issue without the benefit of a full record, I would remand the case to the Court of Appeals for its consideration of that issue. In doing so, I would observe, however, that the evidence shows more than mere presence. The jury could have found that defendant had the exclusive means of access to the apartment and, given the compactness of the apartment and the visibility of the weapon, might have concluded that he had constructive possession of the weapon as well as the cocaine. See United States v LaGuardia, 774 F.2d 317 (CA 8, 1985); United States v Curry, 911 F.2d 72 (CA 8, 1990).

Thus, I concur in the majority's reversal of the decision of the Court of Appeals and reinstatement of the defendant's conviction with respect to the first count, possession with intent to deliver. I respectfully, but strenuously disagree with the majority's decision to opine with respect to the second issue, and would remand this question to the Court of Appeals.