PEOPLE OF MI V BRUCE URBANSKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 23, 2000
Plaintiff-Appellant,
v
No. 222656
Wayne Circuit Court
LC No. 99-006070
BRUCE URBANSKI,
Defendant-Appellee.
Before: Markey, P.J., and Gribbs and Griffin, JJ.
PER CURIAM.
Defendant was charged with attempted unlawful sale of a firearm to a felon, MCL 750.223(3);
MSA 28.420(3); MCL 750.92; MSA 28.287. Prior to trial, the trial court entered an order granting
defendant’s motion to dismiss the charge without prejudice on the basis that the information was
defective. The prosecution now appeals as of right, and we reverse.
I. Factual Background 1
On April 2, 1999, Officers Larry Crider and Mark Osantowski of the Wayne County Sheriff’s
Department conducted an undercover sting operation at Pegos Gun Shop. Crider told defendant, who
was working at the gun shop, that he was interested in a particular revolver in the display case.
Defendant refused to take the revolver out of the case unless Crider produced a purchase permit.
Crider responded that he could not get a permit because he had been arrested up north for having a
firearm in his vehicle and he was still on probation. When Osantowski showed defendant a purchase
permit matching his undercover identification, defendant removed the revolver from the case and gave it
to Osantowski, telling Crider that he could not hold it.
Osantowski filled out the required paperwork for the purchase of the revolver. With respect to
a question on the form asking whether Osantowski was the “actual purchaser,” defendant told him that
he could lie on the form and that it was none of his business. Crider removed government funds from
his pocket and handed them to Osantowski in defendant’s presence; Osantowski then gave the funds to
defendant, completing the “straw purchase.” Crider asked for ammunition, which defendant produced.
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Defendant then handed both the weapon and the ammunition to Crider, advising him to carry the two
items separately in his car.
II. Dismissal of the Charge on Ground of Defective Information
The prosecutor argues that the trial court erred in dismissing the charge against defendant on the
ground the information was defective. Whether the information was insufficient to give defendant notice
of the charge against him is a constitutional issue, which this Court reviews de novo. People v Darden,
230 Mich App 597, 600; 585 NW2d 27 (1998).
Pursuant to MCL 767.45(1); MSA 28.985(1), an indictment or information2 must contain the
following:
(a) The nature of the offense stated in language which will fairly apprise the
accused and the court of the offense charged.
(b) The time of the offense as near as may be. . . .
(c) That the offense was committed in the county or within the jurisdiction of
the court. . . .
“ ‘An information must be specific for two reasons: it affords the defendant due notice of the charges
against him and protection against double jeopardy should he be retried.’ ” People v Traughber, 432
Mich 208, 215; 439 NW2d 231 (1989), quoting People v Covington, 132 Mich App 79, 88; 346
NW2d 903 (1984) (Maher, J., concurring). A defendant’s right to adequate notice of the charges
against him stems from the Sixth Amendment, as applied to the states through the Due Process Clause
of the Fourteenth Amendment. Darden, supra at 600. “ ‘A person’s right to reasonable notice of a
charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic
in our system of jurisprudence.’ ” Id., quoting In re Oliver, 333 US 257, 273; 68 S Ct 499; 92 L Ed
682 (1948).
The test for sufficiency of an information is as follows:
“Does it identify the charge against the defendant so that his conviction or
acquittal will bar a subsequent charge for the same offense; does it notify him of the
nature and character of the crime with which he is charged so as to enable him to
prepare his defense and to permit the court to pronounce judgment according to the
right of the case?” [People v Weathersby, 204 Mich App 98, 101; 514 NW2d 493
(1994), quoting People v Adams, 389 Mich 222, 243; 205 NW2d 415 (1973).]
In the instant case, the information provides as follows:
COUNT 1 . . . WEAPONS-FIREARMS-SALE TO FELON
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[Defendant] did attempt to commit an offense prohibited by law, to-wit: sell a
firearm and/or ammunition to Larry Crider, a person he or she believed to have been
convicted of Carrying Pistol in Motor Vehicle and/or was prohibited under MCL
750.224 f [sic] from possessing, using, receiving, transporting, selling, purchasing,
carrying, shipping, or distributing a firearm, a crime punishable for more than 1 year;
contrary to MCL 750.223(4); MSA 28.420, and in said attempt did act towards the
commission of said offense, but failed in the perpetration or was prevented in the
execution thereof; contrary to MCL 750.92; MSA 28.287.
The statute identified in the information, MCL 750.223; MSA 28.420, provides as follows, in relevant
part:
(3) A seller shall not sell a firearm or ammunition to a person if the seller knows
that either of the following circumstances exists:
(a) The person is under indictment for a felony. As used in this subdivision,
“felony” means a violation of a law of this state, or of another state, or of the United
States that is punishable by imprisonment for 4 years or more.
(b) The person is prohibited under section 224f from possessing, using,
transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm.
(4) A person who violates subsection (3) is guilty of a felony, punishable by
imprisonment for not more than 10 years, or by a fine of not more than $5,000.00, or
both. [Footnote omitted.]
Section 224f, in turn, generally establishes two separate periods during which it is unlawful for a
convicted felon to carry a firearm: individuals convicted of an unspecified “felony” may not possess (or
use, transport, sell, purchase, etc.) a firearm in this state until the expiration of three years after serving
any term of imprisonment, parole or probation, while individuals convicted of a “specified felony,” as
defined by the statute, are subject to a five-year period during which it is unlawful to possess a firearm in
the state. MCL 750.224f; MSA 28.421(6); see also People v Parker, 230 Mich App 677, 686; 584
NW2d 753 (1998).
We conclude that the information in this case did not fulfill the requirements set forth in MCL
767.45(1); MSA 28.985(1) and Adams, supra at 243. The information charges defendant with
violating MCL 750.223(3)(b); MSA 28.420(3)(b);3 however, it fails to set forth all of the elements of
that offense. In charging defendant with attempting to sell a firearm to “a person he or she believed to
have been convicted of Carrying Pistol in Motor Vehicle and/or was prohibited under MCL 750.224 f
[sic] from possessing . . . a firearm,” the prosecution omitted an essential element of the offense: that
defendant knew that Crider was prohibited under § 224f from possessing a firearm. MCL
750.223(3)(b); MSA 28.420(3)(b). See Traughber, supra at 214, quoting People v Maki, 245 Mich
455, 473; 223 NW 70 (1929):
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“Both in this State and elsewhere it is the rule that where a statute uses general
or generic terms in describing an offense, does not sufficiently define the crime or set
out all its essential elements, or where a charge in the language of the statute charges
a mere legal conclusion, an information which alleges the crime in the words of the
statute is not sufficient, but a more particular statement of facts is necessary.”
[Emphasis added.]
See also Weathersby, supra at 101-102; People v Hardiman, 132 Mich App 382, 383-384; 347
NW2d 460 (1984).
However, “prejudice is essentially a prerequisite to any claim of inadequate notice.” Darden,
supra at 602, n 6. As this Court recently noted, “the constitutional notice requirement is not some
abstract legal technicality requiring reversal in the absence of a perfectly drafted information. Instead, it
is a practical requirement that gives effect to a defendant’s right to know and respond to the charges
against him.” Darden, supra at 601. Accordingly,
the dispositive question is whether the defendant knew what acts he was being tried for
so he could adequately put forth a defense. Put another way, was the defendant
prejudiced by the information . . . . [Traughber, supra at 215.]
Defendant was not entitled to a dismissal of the charge against him on the basis that the
information was deficient, because he was not prejudiced in any way by the prosecution’s use of the
words “believed to have been convicted” in the information. The information, which stated “Weapons .
. . Sale to Felon” at the top, clearly notified defendant that he was charged with an attempted violation
of MCL 750.223(3)(b); MSA 28.420(3)(b). The information identified the time and p
lace of the
alleged violation; it further identified the particular purchaser and alleged that defendant “believed” that
the purchaser was prohibited from possessing a firearm under § 224f. Moreover, a preliminary
examination was conducted, at which the prosecutor argued that evidence had been set forth to
establish each element of an attempted violation of MCL 750.223(3)(b); MSA 28.420(3)(b), or from
which each of the elements could be inferred. See Traughber, supra at 215-216. The prosecutor
noted that, because defendant had not sold a weapon to a “felon,” but to an undercover police officer,
he could not be charged with the completed offense; accordingly, the prosecutor explained, the wording
in the information was constructed to reflect the fact that defendant was being charged with an attempt.
Defendant was fully apprised of the nature of the charges against him and of the proofs the prosecution
intended to present at trial. Therefore, defendant was not prejudiced by the information. See id. at
215-217.
III. Denial of Motion to Amend Information
We additionally conclude that the trial court abused its discretion in denying the prosecutor’s
request to amend the defective information. MCL 767.75; MSA 28.1015 provides, in relevant part,
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[n]o indictment shall be quashed, set aside or dismissed for any 1 or more of the
following defects: . . . (Third) That any uncertainty exists therein. . . . If the court be of
the opinion that the third defect exists in any indictment, it may order that the indictment
be amended to cure such defect.
MCL 767.76; MSA 28.1016 provides as follows, in relevant part:
. . . The court may at any time before, during or after the trial amend the
indictment in respect to any defect, imperfection or omission in form or substance or of
any variance with the evidence. If any amendment be made to the substance of the
indictment or to cure a variance between the indictment and the proof, the accused shall
on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a
reasonable continuance of the cause unless it shall clearly appear from the whole
proceedings that he has not been misled or prejudiced by the defect or variance in
respect to which the amendment is made or that his rights will be fully protected by
proceeding with the trial or by a postponement thereof to a later day with the same or
another jury.
Accordingly, “Michigan law clearly contemplates amending indictments for substantive defects without
interrupting the trial process, at least where the amendment would not prejudice the defendant.”
Weathersby, supra at 103. Where the original information is sufficient to inform a defendant of the
nature of the charge against him, the defendant is not prejudiced by an amendment to cure a defect in
the information. People v Newson, 173 Mich App 160, 164; 433 NW2d 386 (1988); People v
Mahone, 97 Mich App 192, 195; 293 NW2d 618 (1980).
Defendant was adequately informed of the nature of the charges against him, both by the
specific language contained in the information and by the proofs and argument presented by the
prosecutor at the preliminary examination. The information’s deficiency was easily curable by
amendment, and the trial court was limited under MCL 767.75; MSA 28.1015 to ordering an
amendment to cure the defect; dismissal was improper under these circumstances. See People v Hunt,
442 Mich 359, 360-361, 364-365; 501 NW2d 151 (1993).
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Jane E. Markey
/s/ Roman S. Gribbs
/s/ Richard Allen Griffin
1
The facts are set forth herein as presented through the testimony of Officer Crider at the preliminary
examination.
2
“All provisions of the law applying to prosecutions upon indictments . . . shall, in the same manner . . .
be applied to informations and all prosecutions and proceedings thereon.” MCL 767.2; MSA 28.942.
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“The word ‘indictment’ includes information . . . .” MCL 750.10; MSA 28.200. See also People v
Grove, 455 Mich 439, 459 n 24; 566 NW2d 547 (1997).
3
The information actually cites MCL 750.223(4); MSA 28.420(4), which sets forth the penalty for
violating MCL 750.223(3); MSA 28.420(3). However, it is otherwise clear from the language of the
information that defendant was being charged under MCL 750.223(3)(b); MSA 28.420(3)(b).
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