5.2Aiding and Abetting
“Every person concerned in the commission of an offense, whether he [or she] directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he [or she] had directly committed such offense.” MCL 767.39.
•M Crim JI 8.1 addresses aiding and abetting.
A person who aids and abets in the commission of an offense is subject to the same penalties as if he or she directly committed the offense. MCL 767.39.
1.Elements of Aiding and Abetting
In order to convict a defendant of aiding and abetting, the prosecution must prove three elements: “(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time that [the defendant] gave aid and encouragement.” People v Robinson, 475 Mich 1, 6 (2006) (quotation and citation omitted, alteration in original). “A defendant is criminally liable for the offenses the defendant specifically intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of the offense he intends to aid or abet.” Id. at 15.
“[A] person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal.” People v Mann, 395 Mich 472, 478 (1975). “Although a defendant may not be convicted of aiding and abetting if the guilt of the principal has not been shown, the identity of the principal is not necessary if the existence of a guilty principal is proven.” People v Wilson (Carolyn), 196 Mich App 604, 611 (1992) (internal citation omitted). Accordingly, “so long as there is evidence that ‘tends to establish that more than one person committed the crime,’ the issue of aiding and abetting may be put before the trier of fact.” Id. at 472, quoting People v Vaughn, 186 Mich App 376, 382 (1990) (alteration omitted).
2.Examples of Aiding and Abetting
Delivery. Evidence that the defendant “transported another person to an illegal narcotics transaction, provided the money for th[e] transaction, and intended that the money be used to purchase narcotics” supported a finding of probable cause that the defendant “aided and abetted the delivery itself by assisting [a] party to the transaction.” People v Plunkett, 485 Mich 50, 62, 65 (2010) (“[A] criminal ‘delivery’ of narcotics necessarily requires both a deliverer and a recipient. Accordingly, a defendant who assists either party to a criminal delivery necessarily aids and abets the deliverer’s commission of the crime because such assistance aids and abets the delivery.”)
Delivery and possession with intent to deliver. Evidence that the defendant purchased cocaine later sold by another person to an undercover officer, discussed the price of the cocaine with the person who sold it, and drove the person who completed the sale to the sale location was sufficient to support the defendant’s conviction of aiding and abetting delivery and possession with intent to deliver in violation of MCL 333.7401(2)(a)(iii) and MCL 333.7401(2)(a)(iv). People v Izarraras-Placante, 246 Mich App 490, 496 (2001).
3.Instruction on Aiding and Abetting
“[S]o long as there is evidence that ‘tends to establish that more than one person committed the crime,’ the issue of aiding and abetting may be put before the trier of fact.” Pinkney, 316 Mich App at 472, quoting Vaughn, 186 Mich App at 382 (alteration omitted). “[T]here exist scenarios . . . where an aiding-and-abetting instruction may be given despite the fact that the evidence could lend itself to a defendant’s guilt as the principal or the aider-and-abettor.” Id. at 473-474.
4.Proof of Knowledge or Intent
“An aider and abetter’s knowledge of the principal’s intent can be inferred from the facts and circumstances surrounding an event.” People v Bennett, 290 Mich App 465, 474 (2010) (Sufficient evidence existed from which a jury could conclude that the defendant was guilty of first-degree murder on a theory of aiding and abetting where evidence that the defendant was reluctant to have the principal kill the victim did “not negate the critical element of [the defendant’s] knowledge of [the principal’s] specific intent to kill the victim.”)
5.Correct Venue for Criminal Prosecution
Unless there is “an applicable statutory exception, a crime must be prosecuted in the county in which the crime occurs[.]” People v White, 509 Mich 96, 100 (2022). The aiding and abetting theory of prosecution under MCL 767.39 is a statutory exception to the default rule that venue is proper in the county where the crime was committed. White, 509 Mich at 100, 102. Thus, “for a criminal prosecution under an aiding and abetting theory, . . . the county in which the criminal act of the principal occurred is a proper venue,” regardless of the county in which the accomplice’s actions occurred. Id. at 99 (holding that the proper venue for prosecution of defendant under the aiding and abetting statute was Livingston County where the principal—charged with delivery of a controlled substance causing death—allegedly purchased the controlled substance from defendant in Macomb County but delivered the controlled substance in Livingston County).