Opinion
363914
09-19-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRANDYN STEVEN JOHNSON, Defendant-Appellant.
UNPUBLISHED
Grand Traverse Circuit Court LC No. 22-014048-FC
Before: MURRAY, P.J., AND BORRELLO and MARIANI, JJ.
PER CURIAM.
Defendant, Brandyn Steven Johnson, appeals as of right his conviction, following a jury trial, of delivery of a controlled substance causing death, MCL 750.317a. Defendant was sentenced to serve 15 to 30 years' imprisonment. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
The victim, who was defendant's cousin, faced significant challenges. He was born legally blind and later diagnosed with multiple sclerosis, leading to limited mobility and a reliance on support to maintain a somewhat independent life. Despite struggling with addiction and being on parole at the time of his death, the victim had not tested positive for any controlled substances as recently as four days prior to his death.
Defendant's text messages on the night of October 10, 2021, referenced his acquisition of "flame puppy," a slang term that a Michigan State Police detective confirmed to mean heroin or fentanyl. The following day, defendant's mother took him and the victim out to lunch and then dropped them off at defendant's father's house for the night. That evening, defendant and the victim spent time in his room with the door closed. Defendant later complained to his father about feeling unwell after lunch and ended up waking his father around 10:30 p.m., informing him that the victim had vomited and was snoring loudly. Defendant said he would clean up the vomit and then move to the couch because of the victim's loud snoring. Defendant's father observed the victim lying on his back with a pillow under his head, and he testified that the victim's breathing did not seem to be impaired at that time. Both the defendant and his father then went back to sleep. Notably, defendant's father did not interact with the victim before retiring for the night.
When they awoke the next day, October 12, 2021 at around 7:00 a.m., defendant and his father found the victim dead on the floor in defendant's bedroom. After making a telephone call, defendant left the home. Police arrived shortly thereafter and found five syringes within defendant's bedroom and bathroom and numerous pills, some prescribed and in bottles and others loose in his drawer. The pills were not tested, and only one of the syringes was tested, which indicated the presence of naloxone, a drug that inhibits the effects of opiates and can be used to reverse an opiate overdose. Cellophane wrapping was located under the victim's arm when he was found in the bedroom.
A forensic pathologist prepared an autopsy report, determining "that the cause of death primarily was the toxic effects of fentanyl." A toxicology report indicated the presence of fentanyl and its metabolites in the victim's blood, and opiates, cannabinoids, and fentanyl and its metabolites in his urine.
Audio clips of phone calls made by defendant while he was in jail were played for the jury during the trial. In these calls, defendant mentioned that he had admitted to an official that he had "used" drugs before taking a drug test. He also stated that he had "point[ed an unidentified person] in the direction . . . when he came by the house," that "alls [defendant] did was assist," that he would "even give 'em the person's name," and that he was "helpin'-[the victim] was askin' me over and over again . . . so [defendant] just kinda pointed [the victim] in the direction." In one of the recordings, defendant's father said, "Well, it still doesn't mean that you gave [the victim] stuff," to which defendant responded, "Uh, yeah. I mean, it is what it is, uh ...."
The phone calls from jail were, for unknown reasons, not part of the trial transcripts.
Defendant was convicted and sentenced as stated above. This appeal ensued.
II. ANALYSIS
Defendant argues on appeal that there was insufficient evidence presented to support the conclusion that he delivered fentanyl to the victim. During trial, the prosecution also argued that defendant may have aided and abetted in the delivery of fentanyl to the victim, but defendant argues there was insufficient evidence produced at trial to support the prosecutor's aiding and abetting theory.
The prosecutor failed to file any responsive pleading in this matter.
As this Court explained in People v Haynes, 338 Mich.App. 392, 417; 980 N.W.2d 66 (2021):
This Court reviews a challenge to the sufficiency of the evidence by examining the record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the
crime were proved beyond a reasonable doubt. This Court must resolve all conflicts in the evidence in favor of the prosecution. [Quotation marks and citation omitted.]
"The sufficient evidence requirement is a part of every criminal defendant's due process rights." People v Wolfe, 440 Mich. 508, 514; 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). The Due Process Clauses of both the United States Constitution and the Michigan Constitution guarantee a criminal defendant's due-process rights. U.S. Const, Ams V and XIV; Const 1963, art 1, § 17; see also Jackson v Virginia, 443 U.S. 307, 318; 99 S.Ct. 2780; 61 L.Ed.2d 560 (1979).
"[T]he prosecution need not disprove all theories consistent with defendant's innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite the contradictory theory or evidence a defendant may offer." People v James, 327 Mich.App. 79, 89; 932 N.W.2d 248 (2019) (quotation marks and citation omitted). "On appellate review, we accept as true the evidence contradicting defendant's version of the crime, as we must consider the evidence in a light most favorable to the prosecution, . . . and view every reasonable inference in favor of the jury verdict." People v Oros, 502 Mich. 229, 246; 917 N.W.2d 559 (2018). "When reviewing the sufficiency of the evidence, appellate courts must not interfere with the fact-finder's role of deciding credibility." People v Xun Wang, 505 Mich. 239, 258; 952 N.W.2d 334 (2020). "Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." Oros, 502 Mich. at 239 (quotation marks and citation omitted).
Defendant was convicted of delivery of a controlled substance causing death under MCL 750.317a, which states:
A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of . . . [MCL 333.7401], that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.
Our Supreme Court has set forth the following elements of a prosecution under MCL 750.317a:
(1) [D]elivery to another person, (2) of a schedule 1 or 2 controlled substance (excluding marijuana), (3) with intent to deliver a controlled substance as proscribed by MCL 333.7401, (4) consumption of the controlled substance by a person, and (5) death that results from the consumption of the controlled substance. [People v McBurrows, 504 Mich. 308, 319; 934 N.W.2d 748 (2019).]
Fentanyl is classified as a schedule 2 controlled substance under MCL 333.7214(b). Delivery of fentanyl is proscribed by MCL 333.7401(2)(a).
MCL 750.317a is a general intent crime that "does not require the intent that death occur from the controlled substance first delivered in violation of MCL 333.7401." People v Plunkett, 485 Mich. 50, 60; 780 N.W.2d 280 (2010). "Rather, the general intent required to violate MCL 750.317a is identical to the general intent required to violate MCL 333.7401(2)(a): the delivery of a schedule 1 or 2 controlled substance." Id. In other words, "the statute punishes 'an individual's role in placing the controlled substance in the stream of commerce, even when that individual is not directly linked to the resultant death.'" McBurrows, 504 Mich. at 317, quoting Plunkett, 485 Mich. at 60.
MCL 333.7105(1) defines "deliver" or "delivery" as "the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship." "[T]ransfer is the element which distinguishes delivery from possession." People v Schultz, 246 Mich.App. 695, 703; 635 N.W.2d 491 (2001) (alteration in Schultz; quotation marks, citation, and emphasis omitted). Although not defined by the Legislature, dictionary definitions of "transfer" as a verb include "to convey from one person, place, or situation to another," and as a noun include "conveyance of right, title, or interest in real or personal property from one person to another." Merriam-Webster's Collegiate Dictionary (11th ed). Either usage "seem[s] to broadly contemplate any conveyance of something from one person to another." Schultz, 246 Mich.App. at 703. This Court has also concluded that "the scope of prohibited transfers, as contemplated by MCL 333.7105(1), plainly and unambiguously includes 'sharing' of controlled substances in social situations." Id. at 704 (quotation marks and citation omitted).
Michigan's aiding-and-abetting statute, MCL 767.39, states:
Every person concerned in the commission of an offense, whether he 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 had directly committed such offense.
The elements of aiding and abetting are:
(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; 715 N.W.2d 44 (2006) (quotation marks and citations omitted; alteration in Robinson).]
"MCL 767.39 assigns liability when a co-defendant 'procures, counsels, aids, or abets' the conduct of another." People v Dupree, 511 Mich. 1, 11; 993 N.W.2d 185 (2023), quoting MCL 767.39. "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; 802 N.W.2d 627 (2010).
"[A]iding and abetting is not a distinct criminal act; rather, it is a theory of prosecution that imposes vicarious criminal liability on an accomplice for the acts of the principal." People v White, 509 Mich. 96, 102; 983 N.W.2d 348 (2022). "A central reason for treating aiding and abetting as a theory of prosecution rather than a distinct criminal act is that it allows an accomplice to be 'treated as a principal and prosecuted in the place of the commission of the substantive offense.'" Id. at 103 (citation omitted). A prosecutor must prove beyond a reasonable doubt "that the defendant intended to aid the charged offense" and either "knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense." Id. (quotation marks and citation omitted). In the context of aiding and abetting the delivery of a controlled substance causing death under MCL 750.317a, "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." Plunkett, 485 Mich. at 62.
The prosecution presented evidence from which the jury could conclude beyond a reasonable doubt that defendant either directly delivered the fentanyl that caused the victim's death or assisted in the delivery of the fentanyl. The evidence presented at trial demonstrated that defendant obtained "flame puppy"-fentanyl or heroin-on October 10, 2021, that defendant spent time alone with the victim behind closed doors, and the victim was found dead in defendant's room the following morning. Additionally, defendant made incriminating statements to his parents while he was incarcerated that he helped the victim and pointed him in the right direction. This evidence was sufficient to support either a finding that defendant delivered the fentanyl that caused the victim's death or a finding that he aided and abetted the delivery of the fentanyl that caused the victim's death.
When viewing all of this evidence in the light most favorable to the prosecution, as required, Haynes, 338 Mich.App. at 417, the jury could reasonably infer that defendant directly delivered some of the "flame puppy"-that is, fentanyl-that he had obtained on October 10, 2021, to the victim. Alternatively, based on this evidence, the jury could reasonably infer that the victim needed assistance to obtain and consume fentanyl, and defendant provided that assistance by performing acts that facilitated the delivery of fentanyl to the victim. It could be inferred that the defendant "intended to aid the charged offense" and either "knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense," White, 509 Mich. at 103 (quotation marks and citation omitted). See Robinson, 475 Mich. at 6 (an aiding-and-abetting theory requires proof that the crime charged was committed by either the defendant or "some other person"); Plunkett, 485 Mich. at 62 ("[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.").
Affirmed.