People v. Hartuniewicz

816 N.W.2d 442, 294 Mich. App. 237
CourtMichigan Court of Appeals
DecidedSeptember 29, 2011
DocketDocket No. 298163
StatusPublished
Cited by41 cases

This text of 816 N.W.2d 442 (People v. Hartuniewicz) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Hartuniewicz, 816 N.W.2d 442, 294 Mich. App. 237 (Mich. Ct. App. 2011).

Opinion

GLEICHER, P.J.

A jury convicted defendant Benjamin Alan Hartuniewicz of possession of ketamine, a schedule 3 controlled substance,1 in violation of MCL 333.7403(2)(b)(ii) of the controlled substances act (CSA), MCL 333.7101 et seq.2 Defendant argues that the prosecution failed to establish, as an element of the [239]*239charged offense, that the ketamine was not “in a proportion or concentration to vitiate the potential for abuse,” because such diluted substances are “excluded” from the CSA by MCL 333.7227(1). We hold that the exclusion in MCL 333.7227(1) is not an element of a possession offense, but an affirmative defense for which a defendant bears the burden of proof. Because defendant presented no evidence demonstrating that the ketamine was mixed with other substances or was “in a proportion or concentration to vitiate the potential for abuse,” we affirm the trial court’s denial of defendant’s motion for a directed verdict and rejection of defendant’s proposed jury instruction.

I. FACTUAL AND PROCEDURAL HISTORY

On June 24, 2009, defendant’s probation officer and the local probation supervisor went to defendant’s home for an unscheduled residence visit. When defendant came to the door, his pupils were dilated, his face was flushed, and he acted confused and disoriented. The officers secured defendant’s consent to search the residence. They found a plate under defendant’s bed that held a white powdery substance, an assortment of pills and tablets, a straw, defendant’s driver’s license, and a small plastic bag containing a white powdery substance. The officers also found an empty bag coated with a white powdery residue. Defendant admitted to the probation officers that certain items were prescription medications that he had received from friends. Defendant claimed that he purchased the other substances over the Internet. Defendant further stated that he used the substances to “get high.”

Subsequent forensic testing negated the presence of any controlled substances in the pills, tablets, and powder on the plate and in the full bag. However, the white [240]*240powdery residue found on the otherwise empty bag was analyzed and found to contain less than one milligram of ketamine.3 During cross-examination of the forensic analyst, defense counsel inquired about the proportion of ketamine to other substances found within the residue. The witness testified that he had not identified any other substances within the residue or analyzed the ratio of ketamine to other substances. The witness further testified that such quantitative analysis would have been difficult to conduct on such a small sample.

At the close of the prosecution’s case in chief, defense counsel moved for a directed verdict. Defense counsel argued that the prosecution had the burden to establish that a substance is proscribed by the CSA and is not excluded from the definition of “controlled substance” under MCL 333.7227(1) for not being “in a proportion or concentration to vitiate the potential for abuse....” In other words, according to defendant, to establish the elements of the charged possession offense, the prosecution was required to establish that the ketamine residue was not so diluted by other substances as to vitiate its potential for abuse. Because the prosecution presented no evidence in that regard, defense counsel argued that it failed to prove the elements of the crime as a matter of law. In the alternative, defense counsel requested the court to read the exclusion of MCL 333.7227(1) into the jury instructions.

[241]*241The trial court denied defendant’s motion for directed verdict and his request for a special jury instruction. In relation to the motion for directed verdict, the court noted that the evidence, taken in the light most favorable to the prosecution, was sufficient to support a guilty verdict for possession. Specifically, the evidence tended to prove that defendant knowingly possessed ketamine. In relation to the jury instructions, the court avoided answering the legal question defendant raised regarding the interpretation of the statutes. Instead, the court decided the issue on the evidence:

I believe as a matter of law that there was just not any evidence to suggest that it was in a proportion or concentration to vitiate the potential for abuse that’s before the Court. And I know the defense does not have the burden to do anything, of course, but there’s just no evidence of it, in the Court’s estimation, that it’s been somehow diluted to such a level that it can’t have any potential, and for that reason I’m respectfully readopting my decision not to give a special instruction....

The jury then convicted defendant of possession of ketamine, and the court sentenced him to 48 months of probation.

II. STANDARD OF REVIEW

At issue in this appeal is the interpretation and coordination of various provisions of the CSA. We review issues of statutory interpretation de novo. People v Kowalski, 489 Mich 488, 497; 803 NW2d 200 (2011).

The primary goal in interpreting the meaning of a statute is “to ascertain and give effect to the intent of the Legislature .. ..” The first step in determining legislative intent is consideration of the statutory language itself. Statutory language must be read in the context of the act as a whole, giving every word its plain and ordinary meaning. When [242]*242the language is clear and unambiguous, we enforce the statute as written. [Id. at 497-498, quoting People v Lown, 488 Mich 242, 254; 794 NW2d 9 (2011).]

Once we discern the intent of the Legislature regarding the elements of the underlying criminal offense, we can analyze the trial court’s denial of defendant’s motion for directed verdict and rejection of defendant’s proposed special jury instruction.

In reviewing the denial of a motion for a directed verdict of acquittal, this Court reviews the evidence in a light most favorable to the prosecution in order to “determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” [People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006), quoting People v Riley (After Remand), 468 Mich 135, 139-140; 659 NW2d 611 (2003).]

We generally review claims of instructional error de novo. Kowalski, 489 Mich at 501. However, we review for an abuse of discretion a trial court’s determination that a specific instruction is inapplicable given the facts of the case. People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). We consider the jury instructions as a whole to determine whether the court omitted an element of the offense, misinformed the jury on the law, or otherwise presented erroneous instructions. See Kowalski, 489 Mich at 501.

III. DEFENDANT HAS THE BURDEN OF ESTABLISHING AN EXCEPTION TO THE CSA AS AN AFFIRMATIVE DEFENSE

MCL 333.7403(1) proscribes the knowing or intentional possession of a controlled substance unless obtained directly through a valid prescription or valid doctor’s order. A person illegally possessing a schedule 3 controlled substance is guilty of a two-year felony. MCL [243]*243333.7403(2)(b)(ii).

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Bluebook (online)
816 N.W.2d 442, 294 Mich. App. 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hartuniewicz-michctapp-2011.