People of Michigan v. Romon Berry McBurrows , 322 Mich. App. 404 ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
December 19, 2017
Plaintiff-Appellee, 9:05 a.m.
v No. 338552
Monroe Circuit Court
ROMON BERRY MCBURROWS, LC No. 17-243452-FC
Defendant-Appellant.
Before: TALBOT, C.J., and BORRELLO and RIORDAN, JJ.
BORRELLO, J.
In this interlocutory appeal, defendant appeals by leave granted1 the trial court’s order
denying his motion to dismiss. Defendant argued in the trial court as well as on appeal that the
trial court lacked “jurisdiction.”2 Defendant is charged with one count of delivery of a controlled
substance causing death (fentanyl), MCL 750.317a. For the reasons set forth in this opinion, we
reverse and remand the matter to the trial court for further proceedings consistent with this
opinion.
I. BACKGROUND
This case arises out of the drug-related death of Nicholas Abraham. On December 12,
2016, Nicholas called William Ingall to tell Ingall that he was coming over because he wanted to
get some heroin. Later that night, they traveled together in Nicholas’s pickup truck to a house in
Detroit to procure heroin from defendant. Once they arrived in the area, Ingall called
defendant’s cell phone and informed defendant that he wanted to “get some heroin.” Nicholas
gave Ingall $100, and he waited in his pickup truck while Ingall left and purchased heroin from
defendant inside a nearby house. Ingall gave defendant $100, and defendant gave Ingall heroin
that was wrapped up in paper.
1
People v McBurrows, unpublished order of the Court of Appeals, entered July 13, 2017
(Docket No. 338552).
2
As discussed below, defendant’s argument is actually predicated on the claim that venue was
improper in Monroe County.
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Subsequently, Ingall returned to Nicholas’s truck with the heroin, and they went to a
nearby laundromat where they used the heroin. Ingall used approximately $20 worth of the
heroin, and Nicholas used approximately $10 worth of the heroin. According to Ingall, the
heroin “was really strong,” and it “wasn’t real bitter like the heroin would [sic] be.” After Ingall
noticed the strength of the heroin, he told Nicholas “to be careful with it.”
Nicholas dropped Ingall off at Ingall’s house and then went home. Nicholas lived in
Monroe County with his wife, Michelle Abraham. After getting home at approximately 10:00
p.m. that evening, Nicholas put down two lines of heroin on a table and told Michelle to snort the
heroin. Michelle passed out after she used the heroin. When she regained consciousness, she
discovered that Nicholas was not breathing and tried unsuccessfully to resuscitate him. Nicholas
was pronounced dead during the early morning hours of December 13, 2016. An autopsy was
subsequently performed by Dr. Leigh Hlavaty of the Wayne County Medical Examiner’s Office,
who opined that Nicholas’s death was caused by fentanyl toxicity. According to Detective
Michael McClain of the Monroe County Sheriff’s Office Vice Unit, fentanyl is sometimes used
by heroin dealers as “a cutting agent to make the heroin more potent.”
Defendant was charged with one count of delivery of fentanyl causing death and was
bound over to the Monroe Circuit Court following his preliminary examination. Defendant
subsequently moved to dismiss the prosecution’s case on the ground that the trial court lacked
“jurisdiction.” Defendant contended that the trial court lacked jurisdiction over him because the
only “act” that he allegedly committed—the delivery of fentanyl—occurred in Wayne County,
and he did not commit any act in Monroe County since Nicholas’s death was not an “act”
committed by defendant.
A hearing was held on defendant’s motion, and the trial court denied the motion. The
trial court ruled that defendant could be tried in either Wayne County or Monroe County because
elements of the charged offense occurred in both of those counties. The trial court further
reasoned that venue was authorized in Monroe County because a “mortal wound” was inflicted
by means of the drug transaction, which resulted in a death in Monroe County.
We granted defendant’s application for leave to appeal, as well as his motion to stay the
proceedings pending resolution of this appeal.3
As a threshold matter, we note that although defendant has characterized his challenge as
one involving the trial court’s “jurisdiction,” the question presented in this appeal is actually
whether venue was properly laid in Monroe County. “Jurisdiction is the power [of a court] to
act.” People v Johnson, 427 Mich. 98, 106 n 7; 398 NW2d 219 (1986) (opinion by BOYLE, J.)
(quotation marks and citations omitted; alteration in original). “Michigan circuit courts are
courts of general jurisdiction and unquestionably have jurisdiction over felony cases.” People v
Lown, 488 Mich. 242, 268; 794 NW2d 9 (2011), citing Const 1963, art 6, §§ 1 and 13, MCL
600.151, MCL 600.601, and MCL 767.1. However, venue refers to the location, or forum, in
which the trial is to be held. See Gross v Gen Motors Corp, 448 Mich. 147, 156; 528 NW2d 707
3
McBurrows, unpub order.
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(1995); People v Webbs, 263 Mich. App. 531, 533; 689 NW2d 163 (2004). Therefore,
defendant’s appellate argument that the trial court erred because Monroe County is not a proper
county in which to try this case is clearly a venue challenge.4
II. STANDARD OF REVIEW
“A trial court’s determination regarding the existence of venue in a criminal prosecution
is reviewed de novo.” People v Houthoofd, 487 Mich. 568, 579; 790 NW2d 315 (2010). “Venue
is a part of every criminal prosecution and must be proved by the prosecutor beyond a reasonable
doubt.” Webbs, 263 Mich. App. at 533. “A trial court’s ruling addressing a motion to dismiss is
reviewed for an abuse of discretion.” People v Lewis, 302 Mich. App. 338, 341; 839 NW2d 37
(2013). “An abuse of discretion occurs when the trial court chooses an outcome falling outside
the range of principled outcomes.” Id. (quotation marks and citation omitted).
Issues involving statutory interpretation are reviewed de novo. Houthoofd, 487 Mich. at
579. “The primary purpose of a court when construing a statute is to discern and give effect to
the Legislature’s intent.” People v Rivera, 301 Mich. App. 188, 192; 835 NW2d 464 (2013).
“We begin by examining the plain language of the statute; where that language is unambiguous,
we presume that the Legislature intended the meaning clearly expressed—no further judicial
construction is required or permitted, and the statute must be enforced as written.” People v
Williams, 475 Mich. 245, 250; 716 NW2d 208 (2006) (quotation marks and citation omitted).
The words in a statute are interpreted “in light of their ordinary meaning and their context within
the statute.” People v Peltola, 489 Mich. 174, 181; 803 NW2d 140 (2011).
III. ANALYSIS
“The general venue rule is that defendants should be tried in the county where the crime
was committed.” Houthoofd, 487 Mich. at 579. “[E]xcept as the legislature for the furtherance
of justice has otherwise provided reasonably and within the requirements of due process, the trial
should be by a jury of the county or city where the offense was committed.” Id. (quotation
marks and citation omitted; alteration in original).
Accordingly, to determine the county in which venue is proper, it is necessary to
determine the county where the offense was committed. This determination in turn requires an
examination of the statute that defendant was charged with violating.
The crime of delivery of a controlled substance causing death is defined in MCL
750.317a, which provides as follows:
A person who delivers a schedule 1 or 2 controlled substance, other than
marihuana, to another person in violation of section 7401 of the public health
code, 1978 PA 368, MCL 333.7401, that is consumed by that person or any other
4
The trial court also properly recognized that defendant’s motion actually presented a venue
challenge.
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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.
In People v Plunkett, 485 Mich. 50, 60; 780 NW2d 280 (2010), our Supreme Court
explained that
[i]t is clear from the plain language of the statute that MCL 750.317a provides an
additional punishment for persons who “deliver[ ]” a controlled substance in
violation of MCL 333.7401 when that substance is subsequently consumed by
“any . . . person” and it causes that person’s death. It 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.
Consequently, MCL 750.317a is a general intent crime, and as such does
not require the intent that death occur from the controlled substance first delivered
in violation of MCL 333.7401. 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. [First
emphasis added; other alterations in original.]
Thus, MCL 750.317a is properly understood as providing a penalty enhancement when a
defendant’s criminal act—the delivery of a controlled substance in violation of MCL
333.7401—has the result or effect of causing a death to any other individual. It is also clear,
however, that a defendant’s criminal act is complete upon the delivery of the controlled
substance. Criminal liability has attached at that point. The effects of that completed action
merely determine the degree of the penalty that a defendant will face despite the fact that a
defendant need not commit any further acts causing the occurrence of any specific result (such as
a death by drug overdose). Based on the plain language of the statute, establishing a defendant’s
violation of MCL 750.317a requires the prosecution to prove (1) the defendant’s act of
delivering a controlled substance in violation of MCL 333.7401 and (2) the effect that a person
died as a result of consuming the controlled substance.
Establishing an act in violation of MCL 333.7401 with respect to a schedule 1 or
schedule 2 controlled substance requires the prosecution to prove that the defendant delivered an
amount of the controlled substance with knowledge that he was delivering a controlled
substance. People v Collins, 298 Mich. App. 458, 462; 828 NW2d 392 (2012). “ ‘Deliver’ or
‘delivery’ means the actual, constructive, or attempted transfer from 1 person to another of a
controlled substance, whether or not there is an agency relationship.” MCL 333.7105(1).
Fentanyl is classified as a schedule 2 substance. MCL 333.7214(b).
In this case, the prosecution does not dispute that the alleged drug transaction between
Ingall and defendant occurred in Detroit, within Wayne County. Ingall testified at the
preliminary examination that while he was in Detroit, he gave defendant $100 in exchange for
heroin. Presumably, this heroin was mixed with fentanyl. At that point, defendant’s alleged
criminal act—delivery of a controlled substance in violation of MCL 333.7401—was complete.
Plunkett, 485 Mich. at 60. The fact that Nicholas subsequently died may make defendant subject
to prosecution under MCL 750.317a rather than MCL 333.7401, but that is not due to any further
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act on defendant’s part. Id. Because the alleged criminal offense was committed in Wayne
County, venue is proper there. Houthoofd, 487 Mich. at 579. Defendant did not commit any act
in Monroe County, and venue could only be proper in Monroe County if authorized by an
applicable exception to the general rule that venue lies in the county where the crime was
committed. Id.
The prosecution argues on appeal that two statutes which are exceptions to the general
rule regarding venue authorize venue being laid in Monroe County, where the death occurred.
First, the prosecution argues that venue is proper in Monroe County under MCL 762.8,
which provides that
[w]henever a felony consists or is the culmination of 2 or more acts done in the
perpetration of that felony, the felony may be prosecuted in any county where any
of those acts were committed or in any county that the defendant intended the
felony or acts done in perpetration of the felony to have an effect.
In Houthoofd, 487 Mich. at 580, our Supreme Court construed the former version of MCL
762.8, which provided as follows:
whenever a felony consists or is the culmination of 2 or more acts done in
the perpetration thereof, said felony may be prosecuted in any county in which
any one of said acts was committed.
The Houthoofd Court held that the statute unambiguously stated that “when a felony consists of
two or more acts, venue for prosecution of the felony is proper in any county in which any one of
the acts was committed” and that the “statute does not contemplate venue for prosecution in
places where the effects of the act are felt.” Id. at 583-584 (emphasis added). The Court
emphasized that “it is the act that constitutes the felony—rather than its effects—that gives rise
to venue.” Id. at 585. The Legislature subsequently amended MCL 762.8 to also authorize
venue “in any county that the defendant intended the felony or acts done in perpetration of the
felony to have an effect.” 2013 PA 128 (emphasis added).
Here, defendant’s alleged criminal act of delivering a controlled substance was complete
upon concluding the transaction with Ingall, and this act took place entirely within Wayne
County. There is no allegation that defendant committed any act in Monroe County. Because
the alleged crime, with the exception of the sentencing enhancement for the death of Nicholas
was complete at the point of the sale, Plunkett, 485 Mich. at 60, there was no further act to be
committed “in the perpetration of that felony.” MCL 762.8. It was only the effect of Nicholas’s
death that made defendant subject to the potential of the additional punishment provided by
MCL 750.317a. See Plunkett, 485 Mich. at 60. In a prosecution under MCL 750.317a, it is not
necessary for the prosecution to prove that a defendant intended for a death to occur, Plunkett,
485 Mich. at 60, and there is no contention in this case that defendant harbored such an intent.
Most importantly, there is no allegation or evidence that defendant intended such an effect to
occur in Monroe County. MCL 762.8. Although MCL 762.8 was amended to authorize venue
in a county where a defendant intended an act to have an effect, there still is no provision
authorizing venue in a county where a defendant’s act merely happens to have an effect.
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Therefore, MCL 762.8 does not authorize laying venue in Monroe County in this case.
Houthoofd, 487 Mich. at 583-585.
Next, the prosecution argues that venue is proper in Monroe County under MCL 762.5,
which provides that “[i]f any mortal wound shall be given or other violence or injury shall be
inflicted, or any poison shall be administered in 1 county by means whereof death shall ensue in
another county, the offense may be prosecuted and punished in either county.” In support of this
theory of venue, the prosecution relies on our Supreme Court’s decision in People v Southwick,
272 Mich. 258; 261 N.W. 320 (1935). In Southwick, our Supreme Court held that venue was
proper in Oakland County for the defendant’s manslaughter by abortion charge where the
defendant performed an illegal abortion in Jackson County, and the victim subsequently died in
Oakland County. Id. at 259-260, 262. Specifically, the amended information in that case stated
that the defendant
willfully and unlawfully administer[ed] to Aletha Hopps, certain medicines, drugs
and substances and . . . use[d] certain instruments in and upon the body of the said
Aletha Hopps, with intent to procure the miscarriage of the said Aletha Hopps,
she the said Aletha Hopps being then and there a pregnant woman, and that the
administering of said medicines, drugs and substances and by the use of certain
instruments by the said Dr. Charles Southwick as aforesaid not being then and
there necessary to preserve the life of said Aletha Hopps. [Id. at 260 (quotation
marks omitted).]
In reaching its conclusion that venue was proper in Oakland County, the Southwick Court relied
on a statute substantively identical to the current version of MCL 762.5. Id. at 262. The Court
reasoned that the statute authorized venue in Oakland County because the “willful injuries were
inflicted in Jackson county and death occurred in Oakland county.” Id.
Here, the prosecution asks this Court to find that for purposes of MCL 762.5, the alleged
delivery constituted a mortal wound or injury such that the delivery of heroin containing fentanyl
corresponds to the acts undertaken by the defendant in Southwick. We begin our analysis of this
request by noting that neither MCL 762.5 nor our Supreme Court in Southwick defined the terms
“wound” or “injury.” As such, we typically turn to dictionary definitions for terms that are not
defined in the statute. People v Perkins, 473 Mich. 626, 639; 703 NW2d 448 (2005). There we
find that “wound” means “an injury to the body (as from violence, accident, or surgery) that
typically involves laceration or breaking of a membrane (as the skin) and usu. damage to
underlying tissues.” Merriam-Webster’s Collegiate Dictionary (11th ed). “Injury” is defined as
“hurt, damage, or loss sustained.” Id. Although controlled substances can certainly have
dangerous effects, there is no evidence in the instant case that defendant had any contact with
Nicholas or directly transferred a controlled substance to Nicholas. Quite unlike the facts in
Southwick where defendant, in addition to being charged with having administered medicines to
the decedent and also having used “certain instruments” upon the decedent causing her death,
here, the record establishes that the fentanyl entered Nicholas’s body and caused his death as a
result of his own actions related to using heroin; there is no evidence that defendant put any drug
into Nicholas. Rather, defendant provided Ingall with a controlled substance that ultimately
made its way to Nicholas. Therefore, unlike the circumstances in Southwick, there is no factual
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support here for this Court finding that defendant gave Nicholas a mortal wound or otherwise
inflicted any injury on him.
The prosecution also asks this Court to find that heroin and fentanyl are poisons for
purposes of MCL 762.5. The term “poison” is not defined within the statute, nor was this term
defined by the Southwick Court. The term is also not defined in the Public Health Code, MCL
333.1101 et seq., the Michigan Penal Code, MCL 750.1 et seq., or the Code of Criminal
Procedure, MCL 760.1 et seq. Turning to a dictionary, a “poison” is “[a]ny substance, either
taken internally or applied externally, that is injurious to health or dangerous to life.” Stedman’s
Medical Dictionary (26th ed).
Although the amount of fentanyl consumed by Nicholas was “dangerous to life” in this
case, that does not mean that fentanyl is a per se poison in all cases. Fentanyl is classified as a
schedule 2 controlled substance, MCL 333.7214(b), in part because it has legitimate medical
uses, MCL 333.7213 (stating that a substance shall be placed in schedule 2 if it is found, among
other things, that the “substance has currently accepted medical use in treatment in the United
States, or currently accepted medical use with severe restrictions”). In contrast, heroin is not
used for medical treatment and is accordingly classified as a schedule 1 controlled substance.
MCL 333.7212(1)(b) (classifying heroin as a schedule 1 controlled substance); MCL 333.7211
(“The administrator shall place a substance in schedule 1 if it finds that the substance has high
potential for abuse and has no accepted medical use in treatment in the United States or lacks
accepted safety for use in treatment under medical supervision.”). Although heroin may be
injurious to a person’s health, the evidence in this case showed that Nicholas’s death was caused
by fentanyl toxicity rather than by heroin.
Nonetheless, even accepting the argument that a given controlled substance could be
considered a poison in a particular case, that does not mean that MCL 762.5 is automatically
satisfied such that this statute may be relied on to establish venue when the crime at issue is
delivery of a controlled substance causing death. Examining the term poison in context, Peltola,
489 Mich. at 181, we note that this venue statute states that if “any poison shall be administered
in 1 county . . . .” MCL 762.5 (emphasis added). This implies an action related to the poisoning.
Considering the term poison when used as a verb rather than as a noun, we find that “poison” or
“poisoning” means “to injure or kill with poison.” Merriam-Webster’s Collegiate Dictionary
(11th ed). “Poisoning” has also been defined as “[t]he administering of poison.”
Focusing on the use of the word poison as a verb is in accord with the general proposition
that for purposes of determining venue, the focus is on the “act that constitutes the felony.”
Houthoofd, 487 Mich. at 585. In this case, the only criminal act put forth by the prosecution was
defendant’s alleged delivery of the controlled substance. As previously discussed, defendant’s
alleged criminal act was complete once the delivery occurred, and that delivery was completed
entirely within Wayne County. Defendant has not been charged with any crime related to
poisoning anyone. For example, he is not charged with first-degree murder by poisoning, see
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MCL 750.316(1)(a),5 or mingling a poison or harmful substance with food, drink,
nonprescription medicine, or a pharmaceutical product, see MCL 750.436(1)(a).6 Moreover, for
purposes of establishing venue, the lesson from Southwick is that the mortal wound, injury, or
poison must be inflicted on or administered to the victim directly in order for venue to be proper
under MCL 762.5 when the death subsequently occurred in a different county. It is not enough
to depend on a drug supply chain to link a defendant’s act in one county to the death in another
county of victim who had no contact with the defendant in order to rely on MCL 762.5 for
establishing venue. In this case, there is no support for the contention that defendant
administered anything to Nicholas.
In sum, without any evidence that defendant either administered a poison or inflicted a
mortal wound or other violence or injury on Nicholas, MCL 762.5 is inapplicable to this case and
does not provide a basis for laying venue in Monroe County. Therefore, the trial court erred by
ruling that venue was proper in Monroe County and denying defendant’s motion to dismiss.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Michael J. Talbot
/s/ Michael J. Riordan
5
MCL 750.316(1)(a) provides that a person who commits “[m]urder by means of poison, lying
in wait, or any other willful, deliberate, and premediated killing” is guilty of first-degree murder.
6
MCL 750.436(1)(a) provides that a person shall not
[w]illfully mingle a poison or harmful substance with a food, drink,
nonprescription medicine, or pharmaceutical product, or willfully place a poison
or harmful substance in a spring, well, reservoir, or public water supply, knowing
or having reason to know that the food, drink, nonprescription medicine,
pharmaceutical product, or water may be ingested or used by a person to his or
her injury.
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