Opinion
Docket No. 117702.
Decided December 6, 1990; approved for publication March 13, 1991, at 9:00 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and E. David Brockman and Charles E. Donahue, Assistant Attorneys General, for the people.
Janel S. Fain, P.C. (by Janel S. Fain), for the defendant.
Before: WAHLS, P.J., and GILLIS and JANSEN, JJ.
On January 17, 1989, following a bench trial in the Genesee Circuit Court, defendant was convicted of violating the cigarette tax act, MCL 205.501 et seq.; MSA 7.411(1) et seq., on three separate occasions. On March 7, 1989, defendant was sentenced to twenty-four months' probation, with the last thirty days to be served in the county jail if he failed to comply with the terms and conditions of probation. Defendant appeals his conviction as of right. We affirm.
Defendant was charged with violating MCL 205.503(a); MSA 7.411(3)(a), which provides in part:
No person shall sell, purchase, possess or acquire cigarettes or act as . . . unclassified acquirer . .. in this state, unless licensed to do so as herein provided.
Defendant was also charged with violating MCL 205.506; MSA 7.411(6), which provides in part:
Every . . . unclassified acquirer . . . shall keep a complete and accurate record of all cigarettes . .. purchased or otherwise acquired.
"Unclassified acquirer" is defined as "any person . . . who . . . acquires cigarettes for use, sale, or distribution from any source other than a wholesaler or a secondary wholesaler licensed under this act." MCL 205.501(g); MSA 7.411(1)(g). When the wholesale price of the cigarettes involved amounts to or exceeds $50, a person found to have violated the act's provisions is guilty of a felony punishable by five years' imprisonment, or a $5,000 fine, or both. MCL 205.509(b); MSA 7.411(9)(b).
Testimony presented by the prosecution established that defendant paid for cigarettes which were offered for sale on three separate occasions by undercover officers who were investigating suspected violations of the act at stores in the Flint area. When officers entered the store on the first occasion and offered to sell the cigarettes to defendant's fellow employee, that employee directed the officers to defendant. Defendant bargained with the officers before agreeing on a price of approximately $5 per carton, which was well below the average wholesale price of more than $10 per carton. According to the officers, defendant paid for the cigarettes with money from his wallet. The second occasion was similar. On the third occasion, defendant paid for the cigarettes with money from the cash register. Subsequently, a treasury agent purchased cigarettes which were determined to be those sold to defendant by the undercover officers. Other evidence established that neither defendant nor the undercover officers who sold defendant the cigarettes were licensed under the act, and that no records were kept of the sales.
Contrary to defendant's arguments on appeal, there clearly was sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of violating the act's provisions, or of aiding and abetting their violation, even though defendant did not own the store and was allegedly acting at the store owner's direction. See People v Huey, 345 Mich. 120, 127; 75 N.W.2d 893 (1956) (conspiracy to violate cigarette tax act); People v Petrella, 424 Mich. 221, 268-269; 380 N.W.2d 11 (1985) (standard of review: sufficiency of evidence in bench trial, and denial of motion for directed verdict). We note that the act, § 3(a), states that "[n]o person shall . . . purchase . . . or acquire," and alternatively states "or act as . . . unclassified acquirer." But even assuming that defendant had to be an "unclassified acquirer" to be found guilty of violating the act, that term is defined by the act, § 1(g), as " any person . . . who . . . acquires cigarettes for use, sale, or distribution." The act, § 1(g), does not require that the cigarettes be acquired for defendant's use, sale, or distribution. Thus, the ownership of the store is virtually irrelevant to the issue of defendant's guilt or innocence. Finally, as did the trial court, we find defendant's claim that he was ignorant of American business practices incredible in light of his college education as a management-business major.
Defendant's claim of entrapment is untenable. Defendant's own testimony showed that he was ready, willing, and able to purchase cigarettes from the undercover officers. See People v Patrick, 178 Mich. App. 152, 153-154; 443 N.W.2d 499 (1989). We conclude that the officers' conduct did not go beyond "the mere offering of an opportunity to commit a crime." Id.
Regarding defendant's claim that the statute is unconstitutional, defendant waived the issue by failing to raise it in the trial court. Huey, supra, pp 129-130.
Affirmed.