People v. Lewis , 97 Mich. App. 650 ( 1980 )

97 Mich. App. 650 (1980) 296 N.W.2d 62

PEOPLE
v.
ROBERT LEWIS.

Docket No. 50765.

Michigan Court of Appeals.

Decided May 9, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.

Before: DANHOF, C.J., and V.J. BRENNAN and H.R. CARROLL,^[*] JJ.

ON REMAND

PER CURIAM:

Defendant was convicted of bringing whiskey and marijuana into a prison, contrary to MCL 800.281; MSA 28.1621. He was sentenced to three years, four months to five years imprisonment. Defendant appealed as of right to this Court which affirmed his conviction in an unpublished memorandum opinion. People v Lewis, (Docket No. 77-599, released July 27, 1979). Defendant applied for leave to appeal to the Michigan Supreme Court. In lieu of leave to appeal that Court vacated this Court's judgment and remanded the case to this Court with the direction that we address two issues raised before this Court but not specifically dealt with in our prior opinion. 408 Mich. 874 (1980).

Defendant argued that, as a matter of law, an inmate who does not leave prison cannot be convicted of bringing liquor and drugs into prison. Defendant claimed that he, as a convict, is not within the class of offenders described in the statute; he believes only outside suppliers are to be punished under the statute. We disagree.

The intent of MCL 800.281; MSA 28.1621, is to prohibit bringing enumerated contraband into prisons. It is designed to keep contraband out of prison, not to punish a particular group of people. Cf., People v Kyllonen, 402 Mich. 135; 262 NW2d 2 (1978). Defendant's behavior was clearly proscribed by the statute because he employed agents to pick up whiskey and marijuana outside of the prison and smuggle it inside in garbage trucks. Others would unload the contraband, repackage it and deliver it to defendant. Thus, defendant was directly responsible for "bringing" the contraband into the prison.

Defendant also argued that there was insufficient evidence of guilt of a principal so defendant could not be convicted as an aider and abettor, that the trial court erred in instructing the jury on aiding and abetting, and that there was no evidence of furnishing contraband to other inmates.

The people submitted this case to the jury on the theory that defendant was guilty of bringing contraband into the prison as a principal or, in the alternative, as an aider and abettor. First of all, we reject defendant's argument that the evidence was insufficient because we find sufficient evidence to convict him as a principal. Secondly, the evidence established that an inmate garbage truck driver knowingly brought whiskey and marijuana into the prison at the direction of defendant. There was sufficient evidence to hold this inmate guilty as a principal.

We also reject defendant's instructional claim. Since defendant did not object at trial, appellate review is precluded absent manifest injustice. People v Parker, 76 Mich. App. 432, 452; 257 NW2d 109 (1977). We find no manifest injustice because the jury was properly instructed that they had to find a principal guilty of the charged offense beyond a reasonable doubt before finding defendant guilty as an aider and abettor.

Further, no evidence of distributing contraband to other inmates is required because distribution to others is not an element of the offense charged. Similarly, no jury instruction to that effect is required.

Finally, we again hold defendant's original argument that MCL 800.281; MSA 28.1621 violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, to be without merit. Defendant's reliance on People v Stanton, 400 Mich. 192; 253 NW2d 650 (1977), is misplaced. Stanton held that the 1972 amendment, proscribing possession by a convict of a weapon, exceeded the scope of the title and was thus unconstitutional. It did not affect the rest of the statute, under which defendant was charged.

Affirmed.

H.R. CARROLL, J., did not participate.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.