PEOPLE OF MI V SHAWN HUTCHINSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 13, 1999
Plaintiff-Appellant,
v
No. 213289
Wayne Circuit Court
LC No. 94-001010
SHAWN HUTCHINSON,
Defendant-Appellee.
Before: Zahra, P.J., and Saad and Collins, JJ.
PER CURIAM.
The Wayne County Prosecutor appeals by leave granted from the order of the trial court
granting defendant’s motion for a new trial. We reverse and remand.
Defendant was originally charged with possession with intent to deliver 650 grams or more of
cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). Following a bench trial, defendant was
convicted of simple possession of 650 grams or more of cocaine, MCL 333.7403(2)(a)(i); MSA
14.15(7403)(2)(a)(i). However, at the sentencing hearing, which took place more than nine months
after trial due to several adjournments at defendant’s request, the trial court sua sponte concluded that it
had intended to convict defendant of attempted possession of 650 grams or more of cocaine, MCL
333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i); MCL 750.92; MSA 28.287. Accordingly, the trial
court sentenced defendant to a term of forty to sixty months’ imprisonment, as opposed to the
mandatory sentence of life imprisonment for the completed offense.
The prosecution appealed, and this Court reversed and remanded for reinstatement of the
original verdict of guilty of possession of 650 grams or more of cocaine and for resentencing. People v
Hutchinson, 224 Mich App 603; 569 NW2d 858 (1997). Subsequently, defendant filed a motion for
a new trial, which the trial court granted on the basis that a miscarriage of justice had occurred because
(1) the court had intended to find defendant guilty of only attempted possession, and (2) this Court had
relied on a factual inaccuracy in rendering its opinion ordering that the original verdict of simple
possession be reinstated.1
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MCR 6.431(B) provides:
On the defendant’s motion, the court may order a new trial on any ground that would
support appellate reversal of the conviction or because it believes that the verdict has
resulted in a miscarriage of justice. The court must state its reasons for granting or
denying a new trial orally on the record or in a written ruling made a part of the record.2
The decision whether to grant or deny a motion for a new trial is entrusted to the discretion of the trial
court, and that decision will not be disturbed on appeal absent an abuse of discretion. People v
Lemmon, 456 Mich 625, 648 n 27; 576 NW2d 129 (1998); People v Hampton, 407 Mich 354,
373; 285 NW2d 284 (1979). This Court must examine the reasons given by the trial court for granting
a new trial in order to determine if the court abused its discretion. People v Leonard, 224 Mich App
569, 580; 569 NW2d 663 (1997). Where the reasons given by the trial court for granting the motion
are inadequate or not legally recognized, the trial court abused its discretion. Id.
We find no miscarriage of justice resulted from the trial court’s purported error in finding
defendant guilty of possession, as opposed to attempted possession, of 650 grams or more of cocaine.
As this Court has already noted, the trial judge “proffered no reasoned explanation which would justify
a finding of guilty of only attempted possession, in the face of proofs establishing only actual possession,
either on the basis of the facts originally found or any subsequent clarification.” Hutchinson, supra at
606.
“An attempt consists of: ‘(1) an intent to do an act or to bring about certain consequences
which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most
commonly put, goes beyond mere preparation.’ ” People v Jones, 443 Mich 88, 100; 504 NW2d
158 (1993), quoting 2 LaFave & Scott, Substantive Criminal Law, § 6.2, p 18. To find defendant
guilty of attempted possession, the trial court would have had to find that defendant specifically intended
to possess 650 grams or more of cocaine and that he had done some act in furtherance of that intent.
Common sense dictates that one cannot intend to possess cocaine without knowledge of its existence.
Thus, even a conviction for attempted possession would have required a finding that defendant knew
there was cocaine present.
In this case, the undisputed facts at trial showed that defendant was the sole occupant and
driver of the black 1989 Toyota in which the police found a bag containing 794.7 grams of pure cocaine
along with clothing and a beeper belonging to defendant. There was also a bill for the beeper in
defendant’s name found in the glove box of the vehicle. The only factual dispute at trial was whether
defendant knew that the cocaine was in the car at the time he was driving it.
The undisputed facts establish that defendant possessed the cocaine. Defendant, as the driver
and sole occupant of the car, had dominion and control over the car and its contents, including the bag
of cocaine found on the floor by the front passenger seat. Based on the undisputed facts at trial, we find
that a verdict of guilty of a mere attempt, instead of actual possession, would be illogical. As we noted
in the previous opinion in this matter, “trial judges in bench trials are both required to render logical
verdicts and precluded from exercising a jury’s capacity for lenity.” Hutchinson, supra at 605-606.
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We further find that no miscarriage of justice resulted from this Court’s minor misstatement of
fact. This Court’s previous opinion in this matter erroneously stated that “a large quantity of cash” was
found in defendant’s possession. Contrary to defendant’s assertion, and the apparent belief of the trial
court, this Court did not “rely” on this factual inaccuracy in rendering its previous opinion ordering that
defendant’s original conviction be reinstated and that he be resentenced accordingly. Rather, this Court
was merely parenthetically noting the anomaly in the court’s verdict of guilty of simple possession, as
opposed to possession with intent to deliver:
Although persuaded beyond a reasonable doubt that defendant knew of the cocaine in
the vehicle he was driving and was likewise knowingly exercising dominion and control
over the cocaine, the court nonetheless found that defendant did not intend to deliver the
more than 650 grams of cocaine found in his possession—together with a pager and a
large quantity of cash—but then went on to ‘find the defendant guilty of possession of
650 or more grams of a controlled substance, cocaine, contrary to statute.’
[Hutchinson, supra at 605.]
This Court did not in any way rely on this factual inaccuracy in determining that the trial court had no
authority to alter its “original reasoned verdict” of guilty of possession of cocaine. Moreover, the fact
that only $13 was found in defendant’s possession, as opposed to “a large quantity of cash,” has
absolutely no relevance with respect to his guilt or innocence of simple possession.
Defendant makes the additional argument that the trial court failed to make special findings
regarding his knowledge whether there were drugs in the car. Defendant contends that this failure to
comply with the court rules is an independent ground upon which a new trial may be granted, because it
is a ground which would support appellate reversal of the conviction. MCR 2.517(A) provides, in
relevant part:
(1) In actions tried on the facts without a jury or with an advisory jury, the court shall
find the facts specially, state separately its conclusions of law, and direct entry of the
appropriate judgment.
(2) Brief, definite, and pertinent findings and conclusions on the contested matters are
sufficient, without overelaboration of detail or particularization of facts.
In convicting defendant of possession of 650 grams or more of cocaine, the trial court
specifically found that “the Defendant is a big liar.” The court further found that there was insufficient
proof of defendant’s intent to deliver the cocaine, but that he was guilty of simple possession “contrary
to the statute.” Factual findings are adequate under MCR 2.517(A) if it is manifest that the court was
aware of the factual issues and resolved them and it would not facilitate appellate review to require
further explanation of the path the court followed in reaching the result. People v Johnson (On
Rehearing), 208 Mich App 137, 141-142; 526 NW2d 617 (1994). The court’s specific findings that
defendant was a “liar” and that his testimony was “unbelievable” clearly demonstrate its awareness and
resolution of the factual issue of whether defendant knew of the presence of cocaine in the vehicle.
Therefore, we find that the trial court’s findings were sufficient under MCR 2.517(A).
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For these reasons, we find that the trial court abused its discretion in granting a new trial for
reasons that were inadequate and not legally recognized. Leonard, supra at 580.
Finally, the prosecution requests that, on remand, defendant be resentenced before a different
judge. This Court may direct that a different judge resentence defendant if it determines that this is
warranted by the circumstances. People v Coles, 417 Mich 523, 536; 339 NW2d 440 (1983),
overruled in part on other grounds in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990);
People v Evans, 156 Mich App 68, 71-72; 401 NW2d 312 (1986). In determining whether
resentencing should occur before a different judge, this Court examines the following factors: (1)
whether the original judge would reasonably be expected upon remand to have substantial difficulty in
putting out of his or her mind previously-expressed views or findings determined to be erroneous or
based on evidence that must be rejected; (2) whether reassignment is advisable to preserve the
appearance of justice; and (3) whether reassignment would entail waste and duplication out of
proportion to any gain in preserving the appearance of fairness. People v Hill, 221 Mich App 391,
398; 561 NW2d 862 (1997); Evans, supra at 72.
We believe that it can reasonably be expected that the trial judge will have substantial difficulty
in putting out of his mind his previously-expressed views regarding defendant’s conviction and the
mandatory nature of the applicable sentence. The trial judge has clearly and repeatedly indicated his
reluctance to comply with the orders of this Court and to impose the legislatively mandated life sentence
for possession of 650 grams or more of cocaine. Furthermore, reassignment for the purpose of
resentencing would certainly not entail any waste or duplication. Therefore, we find that the
circumstances warrant resentencing before a different judge upon remand.
Reversed and remanded for reinstatement of the original verdict of guilty of possession of 650
grams or more of cocaine and for resentencing before a different judge. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Jeffrey G. Collins
1
In Hutchinson, supra at 605, this Court erroneously stated that “a large quantity of cash” had been
found in defendant’s possession at the time of his arrest. Only $13 in cash was actually found in his
possession. However, as is evident from the text of this Court’s opinion, the amount of cash possessed
by defendant at the time of his arrest was not a factor critical to this Court’s decision. Id.
2
MCL 770.1; MSA 28.1098 provides that the trial court “may grant a new trial to the defendant, for
any cause for which by law a new trial may be granted, or when it appears to the court that justice has
not been done, and on the terms or conditions as the court directs.” However, MCR 6.431(B)
substantially modifies the statutory standards for granting a new trial, and this Court has indicated that
the court rule supersedes the statute. See People v Bart (On Remand), 220 Mich App 1, 10-11; 558
NW2d 449 (1996); People v McEwan, 214 Mich App 690, 693 n 1; 543 NW2d 367 (1995).
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