Opinion
No. 342525
02-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. FATAE DEVIN-JAMES PIKES, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Jackson Circuit Court
LC No. 16-005503-FC Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ. PER CURIAM.
The prosecution appeals by right the trial court's order granting defendant's motion to dismiss the charges against him. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The prosecution charged defendant with delivery of a controlled substance causing death of the victim, MCL 750.317a, as a third-offense habitual offender, MCL 769.11. The charges arose from an April 27, 2016 incident in which defendant allegedly sold heroin to Melissa Andrea-Lei Mullins. Mullins testified at defendant's preliminary examination that she purchased heroin from defendant at an apartment complex in Lansing, Michigan, located in Ingham County. According to Mullins, James Lawson was nearby when she bought the heroin and had provided her the money with which to purchase it. Mullins and Lawson later used the heroin in Lawson's home in Concord, Michigan, located in Jackson County. Lawson was found dead from a heroin overdose in Jackson County the following day.
Defendant filed a motion to dismiss the action (which was filed in Jackson County) based on improper venue. The trial court granted the motion to dismiss, holding that this Court's decision in People v McBurrows, 322 Mich App 404; 913 NW2d 342 (2017), controlled and compelled dismissal of the charges.
This appeal followed.
II. STANDARD OF REVIEW
We review for an abuse of discretion a trial court's decision on a motion to dismiss. People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Id. (quotation marks and citation omitted). We review de novo issues of statutory interpretation, such as the trial court's interpretation of venue statutes. People v Houthoofd, 487 Mich 568, 579; 790 NW2d 315 (2010).
III. ANALYSIS
Generally, defendants should be tried in the county where the underlying crimes were committed. Houthoofd, 487 Mich at 579. To determine what county is the proper venue, it is necessary to determine where an offense was committed. The location at which an offense was committed is governed by the statute that a defendant is charged with violating. McBurrows, 322 Mich App at 412.
Venue is a part of every criminal prosecution and must be proved by the prosecution beyond a reasonable doubt. People v Webbs, 263 Mich App 531, 533; 689 NW2d 163 (2004). MCL 762.8 provides:
Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration of that felony, the felony may be prosecuted in any county where any of those acts were committed or in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect.
Here, as in McBurrows, defendant was charged with delivery of heroin causing death, MCL 750.317a. Also as in McBurrows, the alleged delivery of heroin occurred in one county and the alleged death of a person (as a result of consuming that heroin) occurred in another county. Delivery of a Schedule 1 drug such as heroin is proscribed by MCL 333.7401. See also MCL 333.7212(1)(b) (categorizing heroin as a Schedule 1 drug). MCL 750.317a provides that if the substance delivered in violation of MCL 333.7401 is consumed by a person and causes death, the guilty party may be sentenced to life in prison or any term of years.
In McBurrows, 322 Mich App at 347, this Court held that "MCL 750.317a is properly understood as providing a penalty enhancement when a defendant's criminal act—the delivery of a controlled substance in violation of MCL 333.7401—has the result or effect of causing death to any other individual. . . . [A] defendant's criminal act is complete upon the delivery of the controlled substance." Therefore, because the alleged crime of delivery of a controlled substance causing death was "complete at the point of sale" with "no further act to be committed in perpetration of that felony," this Court held that the proper venue in which to charge the defendant was the county in which the delivery of the controlled substance was made, not the county where a person died from consuming that controlled substance. Id. at 416 (quotation marks and citation omitted).
Moreover, the Court in McBurrows held that in order for venue to be proper "in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect," there must be evidence that the defendant intended the effect of his or her criminal actions to occur in that county. Id. at 415. Our Supreme Court, in construing a previous version of MCL 762.8, has held that "[t]he statute does not contemplate venue for prosecution in places where the effects of the act are felt . . . ." Houthoofd, 487 Mich at 583-584. Although MCL 762.8 was amended after Houthoofd, "there still is no provision authorizing venue in a county where a defendant's act merely happens to have an effect." McBurrows, 322 Mich App at 416 (emphasis added).
In short, under McBurrows, the prosecution cannot demonstrate that either prong of MCL 762.8 renders venue proper in Jackson County. The evidence offered at the preliminary examination was that the alleged delivery of heroin took place in Ingham County. And the prosecution presented no evidence that defendant intended that delivery to have an effect in Jackson County. Therefore, under McBurrows, the trial court did not err by granting defendant's motion to dismiss. This Court is bound to follow McBurrows and affirm the trial court's dismissal order. MCR 7.215(J)(1).
The prosecution in McBurrows appealed to our Supreme Court. The application for leave to appeal is currently being considered, and the Court has ordered oral argument on the application. See People v McBurrows, 501 Mich 1073 (2018). This Court's opinion in McBurrows remains binding unless it "has been reversed or modified by the Supreme Court" or by special panel of this Court. MCR 7.215(J)(1). --------
The prosecution recognizes that we are bound by McBurrows, but argues that the result reached in McBurrows is unconstitutional and requests that we declare a conflict with that opinion. MCR 7.215(J)(2). We decline to do so. The prosecution argues that this Court's statement in McBurrows describing MCL 750.317a as a "sentencing enhancement" runs afoul of Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), which requires that any fact that increases a defendant's sentence must be submitted to the jury and proven beyond a reasonable doubt. The prosecution presents a strained reading of McBurrows, however. The prosecution maintains that the McBurrows panel held that "causing death" was not an element of the offense under MCL 750.317a; it did not. McBurrows merely states that the criminal acts committed by the defendant were the same for both delivery of a controlled substance and delivery of a controlled substance causing death; in other words, while the death of a person is an element of the crime of delivery of a controlled substance causing death, it is not an act of the defendant, but rather the result or effect of that act. McBurrows goes on to hold that, because the prosecution was required to prove either that the defendant acted in the venue at issue or that he intended that his acts have an effect in the venue at issue in order to satisfy MCL 762.8, and the prosecution had presented no evidence that the defendant intended the effects of his criminal acts to be felt in the venue at issue in that case, dismissal for improper venue was required. McBurrows, 322 Mich App at 416. McBurrows does not state or imply that the elements of both crimes are the same, or that some lower evidentiary standard applies to proof that a person ingested the delivered substance and died as a result, or that a judge rather than a jury could make that determination. Nothing in McBurrows, or this opinion, has any bearing on the fact that, once the proper venue is established, the prosecution in this case must prove to the factfinder beyond a reasonable doubt that Lawson died as a result of ingesting heroin delivered by defendant. There is no Apprendi problem.
We decline to declare a conflict with McBurrows. MCR 7.215(J)(2). Because McBurrows is binding on this Court, MCR 7.215 (J)(1), we affirm the trial court's dismissal of the charges filed against defendant in Jackson County.
Affirmed.
/s/ Michael J. Kelly
/s/ Mark T. Boonstra