910 N.W.2d 328
Mich. Ct. App.2017Background
- Defendant (Jason Robar) charged with two counts of possession with intent to deliver controlled substances (hydrocodone mixture and Methylin). Parties stipulated he possessed the drugs and admitted intent to sell; defense asserted defendant had valid prescriptions.
- At prelim, prosecution originally conceded defendant “has a prescription,” but later disputed that concession. District court bound defendant over; circuit court entertained multiple pretrial motions.
- Trial court ruled (1) use the pre‑2016 model jury instruction element that the defendant must not be authorized to possess (per People v Wolfe), (2) simple possession (MCL 333.7403) is a necessarily included lesser offense of possession with intent to deliver (MCL 333.7401), and (3) if defendant produced evidence of a valid prescription the court would direct a verdict on the greater charge; the court also held defendant need only produce some competent evidence of authorization before the prosecution must disprove authorization.
- Prosecutor appealed by leave granted, challenging the trial court’s rulings on the jury instruction, the status of simple possession as a necessarily included lesser offense and the burdens of proof.
- Court of Appeals reviewed statutory text, model jury instruction M Crim JI 12.3 (amended Aug 2016), and prior Michigan precedent to resolve whether authorization to possess (prescription) is an element of or exception to the intent‑to‑deliver offense and who bears what burdens under MCL 333.7531.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which formulation of M Crim JI 12.3 governs: element of lack of authorization to possess vs. to deliver? | Amended instruction (asks whether defendant was authorized to deliver) accurately states statute and law. | Wolfe requires lack of authorization to possess be treated as an element; use prior model instruction. | Use amended instruction: authorization concerns delivery, not mere possession; trial court erred by requiring pre‑2016 instruction. |
| Is simple possession (MCL 333.7403) a necessarily included lesser offense of possession with intent to deliver (MCL 333.7401)? | Prosecutor: not necessarily included in all contexts; prior decisions (Lucas) treated it as cognate in some situations. | Robar: simple possession is subsumed in intent‑to‑deliver; prescription defense to possession should apply to greater offense. | Yes: simple possession is necessarily included when amounts align (elements are subsumed). Trial court correct on this point. |
| Does a valid prescription exempt a defendant from possession with intent to deliver? | Prescription does not automatically exempt defendant from intent‑to‑deliver charge; MCL 333.7401 contains no prescription exception—authorization must pertain to delivery (licensure or statutory exceptions). | Prescription exemption for simple possession should extend to the greater offense. | No: prescription exempts simple possession but does not by itself exempt intent‑to‑deliver; defendant must show authorization to deliver (license or MCL 333.7303 exceptions). |
| Who bears the burdens of production and persuasion under MCL 333.7531 when claiming authorization/exemption? | Prosecution: defendant must produce evidence and ultimately prosecution must disprove beyond a reasonable doubt only after defendant makes some showing (per Pegenau concurrences). Also argued statute requires defendant to carry both burdens. | Defendant: under Pegenau, once defendant produces some competent evidence, burden shifts to prosecution to prove lack of authorization beyond a reasonable doubt. | Defendant bears both burdens (production and persuasion) by a preponderance for statutory exemptions under MCL 333.7531 per People v Mezy majority; trial court erred in applying Pegenau’s shifting‑burden formulation. |
Key Cases Cited
- People v Wolfe, 440 Mich 508 (Mich. 1992) (articulated elements for possession with intent to deliver; context involved cocaine and led to earlier model instruction requiring lack of authorization to possess)
- People v Crawford, 458 Mich 376 (Mich. 1998) (alternative formulation of elements for possession with intent to deliver; relied on CJI instruction)
- People v Pegenau, 447 Mich 278 (Mich. 1994) (addressed burden of proof for prescription exemption under controlled substances act; left open whether statute shifts burden of persuasion)
- People v Mezy, 453 Mich 269 (Mich. 1996) (majority held defendant bears both burden of production and burden of persuasion by a preponderance to establish statutory exemptions)
- People v Gridiron, 185 Mich App 395 (Mich. Ct. App. 1990) (Gridiron I) (held simple possession is a necessarily included lesser offense of possession with intent to deliver)
- People v Lucas, 188 Mich App 554 (Mich. Ct. App. 1991) (treats possession as a cognate lesser offense in certain amount‑differentiated contexts)