Opinion
Docket No. 77-1270.
Decided November 7, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Myron E. Sanderson, Assistant Prosecuting Attorney, for the people.
Domnick J. Sorise, Assistant State Appellate Defender, for the defendant on appeal.
Defendant was charged with and convicted of possession of five pills containing amobarbital and secobarbital which are controlled substances. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The offense occurred on May 7, 1976, in a state prison camp where defendant was serving part of his sentence for a previous conviction. Defendant was sentenced to a consecutive term of one to two years and now appeals.
Robert E. Malott, who was employed at defendant's prison camp, discovered defendant in a 7-foot by 10-foot furnace room of the camp while checking on the whereabouts of another prisoner. The room was off-limits to prisoners and Malott asked defendant what he was doing there, to which defendant replied, "nothing". Malott quickly searched the room and took defendant to the control office. In his search Malott discovered an envelope, of a type commonly used in the camp, with the following writing on it: "One a day, 141469 [defendant's prison number] March 26th, 1976". The envelope contained seven "water pills" which were not a controlled substance and the five pills which constituted the basis of defendant's conviction. Malott found the envelope behind a fire extinguisher secured to a wall about one foot from where defendant was standing. Malott also saw a blue prison jacket, a belt, and a glass of water in the room but these items apparently did not belong to defendant.
When Malott and defendant left the furnace room, Malott padlocked the door. A short while later Malott found that the window of the room had been broken out from the inside. The door to the room was still locked. The implication from this was that someone besides defendant was in the furnace room when defendant was discovered. A person could have been concealed behind the furnace where Malott would not have seen him. The trial court states that there "very well could have been a person in the room * * * "and the prosecutor conceded in his closing argument that there could have been such a person.
Defendant's primary contention on appeal is that there was insufficient evidence linking defendant to the controlled substances. In this vein, defendant argues that his motion to dismiss at the close of the people's case should have been granted and that the prosecutor failed to negate every reasonable theory consistent with defendant's innocence. A motion to dismiss is reviewed by considering the evidence presented at the time of the motion in the light most favorable to the prosecution, and by determining whether there is evidence supporting each element of the charge. People v De Clerk, 400 Mich. 10, 18; 252 N.W.2d 782 (1977). The prosecutor's duty to negate reasonable theories inconsistent with defendant's guilt stems from the circumstantial nature of the evidence in the case. People v Davenport, 39 Mich. App. 252; 197 N.W.2d 521 (1972).
Our review of the facts reveals that the prosecutor produced evidence on all elements of the offense charged. Primarily, defendant contends that evidence was lacking which linked defendant to the controlled substances. The contraband found in an envelope with defendant's number on it, with other pills in it which were of a type prescribed for defendant, and found next to defendant, constituted evidence which would, at least, overcome defendant's motion to dismiss.
We further find that the circumstantial evidence in this case supports defendant's conviction. As defendant argues, in a case based on circumstantial evidence the prosecution has the burden of proving that there is no reasonable innocent theory in accord with the facts, and any inference involved must follow as an impelling certainty. People v Davenport, supra. However, it is for the trier of fact to determine whether the prosecution has negated every reasonable theory consistent with the defendant's innocence. People v Fuller, 395 Mich. 451, 455; 236 N.W.2d 58 (1975), People v Jablonski, 70 Mich. App. 218, 225; 245 N.W.2d 571 (1976). See also People v Edgar, 75 Mich. App. 467; 225 N.W.2d 648 (1977). And it is likewise for the trier of fact to determine if the inferences are compelling. People v Peterson, 63 Mich. App. 538, 547; 234 N.W.2d 692 (1975). In this case the trier of fact did find every reasonable theory of defendant's innocence negated and the inferences used compelling.
Defendant contends that the trier of fact only considered one of his theories of innocence, i.e., defendant was "framed". But in disagreeing with this theory and finding defendant guilty as charged, the trier of fact necessarily found that the envelope of pills was indeed defendant's and not someone else's envelope with defendant's number mistakenly printed on it.
On appeal, defendant also contends the trial court erred in denying a defense motion to dismiss based on, allegedly, defendant's presentation of prima facie evidence of legitimate possession and the prosecution's failure to present evidence negating legitimate possession. We do not accept defendant's contention since we find that defendant failed to present evidence of legitimate possession. The only thing defendant showed was that the controlled substance could be obtained by a prescription. Defendant failed to show he ever had a prescription for the substance. MCL 335.356; MSA 18.1070(56).
Defendant's final contention on appeal is that he did not properly waive his right to a jury trial. At the beginning of the trial, defense counsel stated:
"Your Honor, at this time we would also ask the Court if we could waive trial by jury."
The trial court responded:
"All right. You may step forward then Mr. Little here, and waive trial by jury."
Defendant then signed the written waiver of jury form. Defendant now contends this process was insufficient to waive a jury trial because defendant himself did not orally waive his right to a jury.
MCL 763.3; MSA 28.856 requires a written waiver of jury "made in open court". Although the statute does not actually state a requirement of an oral waiver, at least one panel of this Court indicated such a requirement exists. People v Word, 67 Mich. App. 663; 242 N.W.2d 471 (1976). But Word did not say that a defendant himself need necessarily make the oral waiver. People v Rimmer, 59 Mich. App. 645; 230 N.W.2d 170 (1975), which Word relied upon, was a case where there was no evidence of any waiver, oral or written, in open court. On the instant record it is abundantly clear that defendant desired to have his case heard by the trial judge and without a jury. There was a waiver in open court, and it was written by defendant and orally made by defense counsel with defendant present. The language and procedure used expressed a clear waiver of a jury trial and conformed with the statutory requirements.
Affirmed.