2.2Common Issues Arising in Controlled Substances Cases
The terms delivery, manufacture, mixture, and possession have been interpreted and applied by the courts. While each term has not been considered in the context of every offense discussed in this chapter, it is reasonable to apply the cases discussing these terms in a particular context broadly to all offenses in Article 7 of the PHC because Article 7 commonly defines manufacture and delivery. See MCL 333.7101 (except for definitions set forth by MCL 333.7341, words and phrases defined in MCL 333.7103 to MCL 333.7109 apply to all of Article 7 of the PHC); MCL 333.7105(1) (defining delivery); MCL 333.7106(3) (defining manufacture); MCL 333.7341(1)(c) (also defining manufacture, but providing a very similar definition to the definition set forth by MCL 333.7106). Moreover, possession and mixture are not statutorily defined and the interpretations of these terms in binding caselaw are broadly applicable.
MCL 333.7105(1) defines deliver or delivery in relevant part as “the actual, constructive, or attempted transfer from 1 person to another of a controlled substance[.]” The term transfer “is the element which distinguishes delivery from possession.” People v Schultz, 246 Mich App 695, 703 (2001) (quotation marks and citation omitted). However, transfer is not defined by statute. Id. “Dictionary definitions of ‘transfer,’ both as a noun and as a verb, seem to broadly contemplate any conveyance of something from one person to another.” Id. Thus, the term transfer “plainly and unambiguously includes sharing of controlled substances in social situations.” Id. at 704 (quotation marks and citation omitted).
•Injection of a previously acquired substance into another person constitutes delivery of a controlled substance for purposes of MCL 333.7105(1). Schultz, 246 Mich App at 709. In Schultz, the defendant’s injection of heroin into the victim constituted delivery because there was sufficient evidence that the defendant obtained the heroin without assistance or participation from the victim. Id. at 707.
•The use of cocaine by a pregnant woman 13 hours before giving birth to a child does not constitute delivery of a controlled substance. People v Hardy, 188 Mich App 305, 310 (1991). The Court explained that a pregnant woman’s use of cocaine, which might result in the postpartum transfer of cocaine metabolites to her infant through the umbilical cord, is not “the type of conduct that the Legislature intended to be prosecuted” under the delivery statute. Id.
“Constructive delivery” of a controlled substance occurs “when the defendant directs another person to convey the controlled substance under the defendant’s direct or indirect control to a third person or entity.” People v Plunkett (Ronald), 281 Mich App 721, 728-729 (2008), rev’d on other grounds 485 Mich 50 (2010)1 (holding that even where the defendant provided transportation and money to obtain the drugs, he did not constructively deliver the drugs to a third party because the drugs were not under the defendant’s control and the defendant did not direct the drug dealer to transfer the drugs to the third party). See Plunkett (Ronald), 485 Mich at 61 n 24 (noting that the Michigan Supreme Court “need not decide whether the Court of Appeals correctly ruled on [the constructive delivery] theory” where bindover was supported under an aiding and abetting theory).
4.General Elements of a Delivery Offense
The general elements of a delivery offense are:
(1) the defendant’s delivery;
(2) of a specific quantity;
(3) of a controlled substance or mixture containing a controlled substance;2
(4) with knowledge that the defendant was delivering a specific controlled substance. See People v Collins (Jesse), 298 Mich App 458, 462 (2012); People v Williams (Robert), 294 Mich App 461, 470 (2011).
M Crim JI 12.2, which applies to cases where the defendant is charged with a violation of MCL 333.7401, sets forth similar elements:
(1) the defendant delivered a controlled substance;
(2) the defendant knew that he or she delivered a controlled substance; and
(3) the controlled substance that the defendant delivered [was in a mixture that]3 weighed a specified amount.
A defendant claiming an exception or exemption under Article 7 of the PHC “bears both the burden of production and the burden of persuasion and must demonstrate by a preponderance of the evidence that he or she is legally authorized to deliver a controlled substance.”4 People v Robar, 321 Mich App 106, 143 (2017). Authorization or lack thereof is not an element of a delivery offense; rather, it refers to an exemption from the crime. Id. at 132, 133.
Both caselaw and the jury instruction include knowledge as an element. However, in People v Delgado, 404 Mich 76, 85-86 (1978), the Court held that “neither the case law nor the statute mandates an instruction to the jury that knowledge is an essential element of the crime, [but] better practice suggests that the instruction be given in ‘delivery’ cases to guarantee fundamental criminal mens rea requirements[;]” however, the trial court’s failure to instruct the jury that “knowledge that the substance delivered was heroin is an element of the offense of delivery of a controlled substance” did not warrant reversal of the defendant’s conviction because he “did not argue that . . . he lacked knowledge . . . or that the people failed to prove his knowledge[.]”
Delivery is a general intent crime. People v Mass, 464 Mich 615, 627 (2001); People v Maleski, 220 Mich App 518, 522 (1996). Precise knowledge of the amount of a substance being delivered is not required for a conviction because knowledge of the amount is not an element of the crime. Mass, 464 Mich at 626. However, the quantity of the controlled substance delivered is an element of the crime of delivery that the prosecution must prove. Id. (holding that “the amount and nature of controlled substances are elements of a delivery offense under MCL 333.7401.”) See also M Crim JI 12.2 (requiring an instruction regarding the weight of the controlled substance).
5.Aggregation of Separate Delivery Amounts Not Permitted
A defendant’s several deliveries on different occasions may not be aggregated to support a conviction for delivering a higher amount of the controlled substance than the amount that was present in any single delivery. People v Collins (Jesse), 298 Mich App 458, 463 (2012). Aggregation is not permitted by the statute because the definition of delivery provided in MCL 333.7105(1) “does not use a plural form of ‘transfer,’ indicating that delivery is a single transfer, not multiple transfers over a period of time.” Collins (Jesse), 298 Mich App at 463 (holding that the “defendant’s various deliveries of 0.5 to 28 grams of heroin on separate occasions [could] not be aggregated to support a conviction for delivering 50 grams or more, but less than 450 grams, of heroin under MCL 333.7401(2)(a)(iii)[]”). Moreover, MCL 333.7401 “imposes more severe punishments on those who manufacture, create, deliver, or possess greater amounts of a controlled substance[;]” thus, “allowing the prosecution to aggregate multiple small deliveries” would “undercut” the legislative system. Collins (Jesse), 298 Mich App at 463. “Finally, caselaw does not support an interpretation of MCL 333.7401 that would allow the prosecution to aggregate separate deliveries.” Collins (Jesse), 298 Mich App at 463.
6.Delivery by a Licensed Physician or Other Practitioner
Article 7 of the PHC only imposes penalties on the unauthorized delivery of controlled substances. See MCL 333.7401(1) (prohibiting manufacture, creation, delivery, and possession “except as authorized by [Article 7 of the PHC]” and noting that appropriately licensed practitioners “shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.”) Thus, a physician or other practitioner who prescribes, dispenses, or administers a controlled substance delivers the controlled substance in violation of MCL 333.7401(1) if the physician or practitioner is not carrying out a legitimate, professionally recognized therapeutic or scientific purpose within the scope of his or her practice. See id.; People v Alford, 405 Mich 570, 589 (1979).5 However, prescribing a controlled substance without first conducting the necessary examination and procedures did not constitute delivery in violation of MCL 333.7401(1) where there was no evidence that the defendants acted in bad faith or that they intended to prescribe or dispense for nonmedical purposes. People v Orzame, 224 Mich App 551, 565-567 (1997).
•The conversion of powder cocaine into crack cocaine by heating it with water and other chemicals constitutes manufacture, which includes the conversion or processing of a controlled substance by chemical synthesis. People v Hunter, 201 Mich App 671, 676-677 (1993).
•There was sufficient evidence to establish that the substance manufactured was methamphetamine where “[t]he liquid inside the reaction vessel contained a mixture of pseudoephedrine and methamphetamine.” People v Meshell, 265 Mich App 616, 619-620 (2005).
•The trial court properly denied the defendant’s motion to dismiss a manufacturing charge where the defendant “was using a process called butane extraction or open blasting to distill tetrahydrocannabinol (THC) from marijuana plant material.” People v Korkigian, 334 Mich App 481, 484 (2020). While this process involves only marijuana materials and does not involve any chemical reaction, manufacture of a controlled substance can also occur directly or indirectly by extraction from substances of natural original and the evidence supported the conclusion that the process “amounted to processing or conversion” because “open blasting to distill concentrated THC from raw plant material involves a significantly higher degree of activity than rolling a marijuana cigarette or baking brownies.” Id. at 494, 499-500 (also rejecting defendant’s argument that the personal use exception applied) (quotation marks and citations omitted).
The statutory definition of manufacture, “does not include . . . [t]he preparation or compounding of a controlled substance by an individual for his or her own use.” MCL 333.7106(3)(a). “[T]here is no similar personal use exception for production, propagation, conversion, or processing.” People v Baham, 321 Mich App 228, 239-240 (2017) (noting “[t]he Legislature has thus drawn a clear distinction between ‘preparing or compounding’ as compared to the other methods of manufacturing identified in § 7106(3)”).6 See also People v Korkigian, 334 Mich App 481, 499 (2020) (“To qualify as ‘preparation’ for personal use,” the “acts must diverge from those ‘manufacturing’ efforts specifically prohibited by the statute: production, propagation, conversion, and processing.”). “‘[T]he plain intent of the statutory personal use exception is to avoid imposing felony liability on individuals who, already in possession of a controlled substance, make it ready for their own use or combine it with other ingredients for use.’” Baham, 321 Mich App at 240, quoting People v Pearson, 157 Mich App 68, 71 (1987).
Caselaw finding the personal-use exception inapplicable. “[T]he personal-use exception applies only to a controlled substance already in existence, and it does not encompass the creation of a controlled substance.” Baham, 321 Mich App at 240, citing Pearson, 157 Mich App at 71-72. Accordingly, the personal use exception does not apply to growing marijuana. Pearson, 157 Mich App at 72. Similarly, “one may not claim the personal-use exception for making or cooking methamphetamine” because it “clearly involves the creation of methamphetamine, meaning that it constitutes production, propagation, conversion, or processing of methamphetamine as opposed to the mere ‘preparation or compounding’ of existing methamphetamine for personal use.” Baham, 321 Mich App at 242-243 (holding that “one who knowingly makes or cooks methamphetamine is guilty of manufacturing methamphetamine without regard to whether the methamphetamine will be distributed or used personally”). The personal use exception does not apply to the process of butane extraction (sometimes referred to as open blasting) to distill tetrahydrocannabinol (THC) from marijuana plant material even though that process starts and ends with marijuana materials because the process goes beyond mere preparation or compounding. Korkigian, 334 Mich App at 496-500. A butane extraction process “does not come within the meaning of either ‘compounding’ or ‘preparation,’” and “is more appropriately characterized as ‘production’ or ‘processing’” where the extraction process involves “a volatile chemical (butane), combined with filtration, followed by evaporation of the solvent, dissolving of the product in a polar solvent, additional filtration, and heating the resulting material under a vacuum.” Id. at 497, 499-500. Accordingly, while the process is technically a preparation of marijuana for personal use, it requires processing “in several different ways to arrive at an end product,” and “the ‘preparation’ aspect of the personal-use exception would swallow the prohibited conduct described in the rule” if any activity that technically involved preparation fell within the scope of the exception. Id. at 500.
Personal use is an affirmative defense. “[T]he personal use exception is an affirmative defense to a charge of manufacturing a controlled substance[.]” Baham, 321 Mich App at 243-244 (holding that the prosecution has no obligation to negate any exemption or exception, including personal use, and the trial court did not err by accepting the defendant’s guilty plea without eliciting evidence that the defendant did not intend to use the methamphetamine for personal use).
The term “mixture” is not defined by statute. When a word is not defined by statute it must be “construed according to its common and approved usage.” People v Barajas, 198 Mich App 551, 555 (1993), aff’d 444 Mich 556 (1994).7 Courts may consult a dictionary to determine the common meaning of a word. Id. In light of the dictionary definition of mixture, the Barajas Court concluded that a mixture “must be reasonably homogeneous or uniform.” Id. at 556. The Court explained that the controlled substance and the filler “must be ‘mixed’ together to form a ‘mixture’ that is reasonably uniform. A sample from anywhere in the mixture should reasonably approximate in purity a sample taken elsewhere in the mixture.” Id. at 556. Accordingly, the Court held that the contents of a box did not constitute a mixture where a rock of cocaine was taped to the inside of a box containing baking soda and the baking soda could be poured out in its entirety with the rock of cocaine still remaining in the box. Id. at 556. The cocaine and the baking soda were not “mixed” because they were easily separated, the concentration of cocaine was “not at all reasonably uniform or homogeneous[,]” and samples from different parts of the box would not be similar in purity. Id. at 556-557.
Similarly, the contents of a container did not constitute a mixture where cocaine and water were in the container, and the cocaine was an insoluble solid material easily separated from the water. People v Hunter, 201 Mich App 671, 675 (1993). The Hunter Court held that the jar did not contain a mixture, but rather, contained two separate items, water and particles of cocaine, because the cocaine and water were easily separated and the “concentration of cocaine was not reasonably uniform or homogeneous.” Id.
The term possession is not defined by statute; however, it has been discussed in caselaw and is defined in M Crim JI 12.7 for purposes of instructing the jury. “The defendant need not own or have actual physical possession of the substance to be found guilty of possession; constructive possession is sufficient.” People v Cohen, 294 Mich App 70, 76 (2011). “Moreover, possession may be joint, with more than one person actually or constructively possessing a controlled substance.” Id. at 520. “Possession is a term that signifies dominion or right of control over the drug with knowledge of its presence and character.” People v Norfleet, 317 Mich App 649, 659 (2016) (quotation marks and citation omitted).
See also M Crim JI 12.7, which provides:
“Possession does not necessarily mean ownership. Possession means that either:
(1) the person has actual physical control of the [substance / thing], as I do with the pen I’m now holding, or
(2) the person has the right to control the [substance / thing], even though it is in a different room or place.
Possession may be sole, where one person alone possesses the [substance / thing].
Possession may be joint, where two or more people each share possession.
It is not enough if the defendant merely knew about the [state substance or thing]; the defendant possessed the [state substance or thing] only if [he / she] had control of it or the right to control it, either alone or together with someone else.”
To establish constructive possession, “‘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.’” People v Wolfe, 440 Mich 508, 521 (1992), quoting United States v Disla, 805 F2d 1340, 1350 (CA 9, 1986) “[A] person’s presence, by itself, at a location where drugs are found is insufficient to prove constructive possession. Instead, some additional connection between the defendant and the contraband must be shown.” Wolfe, 440 Mich at 520 (citations omitted). “Constructive possession of an illegal substance requires proof that the defendant knew of its character.” People v McGhee, 268 Mich App 600, 610 (2005).
Constructive possession was found in the following circumstances:
•There was sufficient evidence to support the defendant’s conviction of possession with the intent to deliver less than 50 grams of heroin where there was no evidence that the defendant actually possessed the heroin recovered in a motel room, but where testimony established that the substance recovered from the motel room was heroin and “that defendant had control over it at the time because he was the one who directed [the people renting the motel room] to deliver the heroin to its intended recipients.” Norfleet, 317 Mich App at 659-660. This testimony was corroborated by another witness “who testified that defendant was the one whom she would call to request the heroin from and that [the people renting the motel room] simply delivered it.” Id. at 660 (holding “[t]here was clear evidence of a sufficient nexus between defendant and the contraband for the jury to conclude that, under the totality of the circumstances, defendant had constructive possession of the heroin[]”).
•There was sufficient evidence for a rational trier of fact to conclude that the defendant constructively possessed drugs found on a night stand and in a closet where the evidence supported an inference that the defendant resided at the apartment where the drugs were found. People v Hardiman, 466 Mich 417, 422-423 (2002). Specifically, the apartment’s mailbox and the nightstand where some of the drugs were discovered contained mail addressed to the defendant, the defendant herself was discovered in the rear parking lot of the building, the heroin was in a dress hanging in the closet, and the record contained no evidence that another woman resided at the apartment. Id.
•It was reasonable to infer constructive possession where the defendant paid for drugs to be delivered to him by a person acting as his agent. People v Konrad, 449 Mich 263, 273-274 (1995).
•In Wolfe, there were “at least three factors” that linked the defendant to the crack cocaine found in the apartment. Wolfe, 440 Mich at 522. First, the evidence tended to show that the defendant was in control of the apartment because he invited others to the premises, and the defendant was the only person with a key. Id. Second, the defendant fled into a back room when the police entered the apartment and the evidence suggested that the defendant was trying to conceal the crack cocaine. Id. Finally, the evidence suggested that sales of cocaine were made from the apartment earlier that day, and that the defendant was involved in the crack sales, the arrangement of meetings, and that he possessed a beeper. Id. at 523.
•“Close proximity to contraband in plain view is evidence of possession.” Cohen, 294 Mich App at 77.
•It was reasonable to infer constructive possession where the defendant had exclusive control or dominion over property on which controlled substances were found. McGhee, 268 Mich App at 623. The Court found that the defendant had exclusive control or dominion over the property because discovered on the premises were a recent electric bill for the property in the defendant’s name, an insurance document for a car with the property’s address and the defendant’s name, and the registration for a vehicle in the defendant’s name. Id. The vehicle itself was found in the garage where the raid took place. Id. Further, photographs of the defendant, an insurance application with the address of the property, a note addressed to the defendant, an expired driver’s license belonging to the defendant bearing the property’s address, and a warranty deed to the defendant and another person for the property were all discovered on the premises. Id.
•It was reasonable to infer constructive possession where the defendant lived with several people in a house and controlled substances were found sitting in plain view in a room containing the defendant’s belongings and a bed upon which the defendant was lying when police entered the house. People v Head, 211 Mich App 205, 210 (1995).
•Actual possession was found where the defendant was arrested holding a bag containing cocaine, and it was reasonable to infer constructive possession where substantial additional cocaine was found in the vehicle that the defendant was driving at the time of his arrest. People v Catanzarite, 211 Mich App 573, 578 (1995).
•It was reasonable to infer constructive possession where police found cocaine, receipts, and personal papers with the defendant’s name on them in a drawer in a bedroom to which the defendant and others had access. People v Richardson, 139 Mich App 622, 625-626 (1984).
Joint possession occurs “[w]here two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together[.]” People v Schultz, 246 Mich App 695, 705 (2001). “Something more than mere association must be shown to establish joint possession. The prosecution must show an additional independent factor linking the defendant with the drugs.” People v Williams (Ronald), 188 Mich App 54, 57-58 (1991) (there was sufficient evidence to prove joint possession where the defendant and another man, who had a packet of cocaine on his lap, were discovered in an abandoned home and the defendant was crouching over a can containing packets of cocaine in an apparent attempt to destroy them). See also Cohen, 294 Mich App at 77 (cocaine found on drug paraphernalia located on the center console of a car occupied by only the driver and the defendant gave the arresting officers probable cause to believe the driver and the defendant jointly possessed the cocaine where the cocaine was in clear view and in reach of both the driver and the defendant).
1 For more information on the precedential value of an opinion with negative subsequent history, see our note.
2 The prosecution is not required to prove that the defendant intended to deliver any particular controlled substance, only that the defendant intended to deliver some controlled substance. McFadden v United States, 576 US 186, 194-195 (2015) (interpreting the knowledge requirement in 21 USC 841(a)(1), which uses substantially similar language to MCL 333.7401 (controlled substances) and MCL 333.7402 (counterfeit substances and controlled substance analogues)).
3 “This bracketed material should be given where the controlled substance is a narcotic drug classified in Schedule 1 or 2, or a cocaine-related substance as found in MCL 333.7214(a)(iv).” M Crim JI 12.2, Use Note 2.
4 People v Robar, 321 Mich App 106, 115-117 (2017) addressed M Crim JI 12.3 (unlawful possession of a controlled substance with intent to deliver); however, that instruction contains language similar to M Crim JI 12.2.
5 Alford analyzed a former version of MCL 333.7401(1); however, the relevant portion of the old version of the statute analyzed in Alford is substantially the same as the current version.
6 “In contrast to preparation and compounding, the other four methods of manufacturing controlled substances—i.e., production, propagation, conversion, and processing—‘contemplate a significantly higher degree of activity involving the controlled substance’ and thus these manufacturing activities are felonies regardless of ‘whether the controlled substance so “manufactured” was for personal use or for distribution.’” Baham, 321 Mich App at 241, quoting People v Pearson, 157 Mich App 68, 71 (1987) (citation omitted). Although the Court of Appeals “[did] not attempt to provide an exhaustive account of the activities that constitute production, propagation, conversion and processing,” it “note[d] that ‘production’ has been statutorily defined as: ‘the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.’” Id., quoting MCL 333.7109(6). “In turn, ‘manufacture’ means ‘to make’ from materials.” Baham, 321 Mich App at 241, quoting Merriam-Webster’s Dictionary (2014). “In comparison, as commonly understood, (1) ‘propagation’ involves ‘the act or action of propagating,’ such as to ‘increase (as of a kind of organism) in numbers,’ (2) ‘conversion’ is ‘the act of converting,’ and (3) ‘processing’ refers to ‘a series of actions or operations conducing to an end’ or ‘a continuous operation or treatment esp. in manufacture.’” Baham, 321 Mich App at 241-242, quoting Merriam-Webster’s Dictionary (2014). “From these various definitions, courts have recognized that production, propagation, conversion and processing encompass ‘planting, growing, cultivating or harvesting of a controlled substance,’ creating a controlled substance ‘by any synthetic process or mixture of processes,’ as well as the alteration or extraction of a controlled substance, such as ‘taking a controlled substance and, by any process or conversion, changing the form of the controlled substance or concentrating it.’” Baham, 321 Mich App at 242, quoting State v Childers, 41 NC App 729, 732 (1979) and citing People v Hunter, 201 Mich App 671, 676-677 (1993).
7 In affirming the decision of the Court of Appeals in Barajas, the Supreme Court noted that “the analysis employed by the Court of Appeals is limited strictly to the facts of this case.” People v Barajas, 444 Mich 556, 557 (1994).