PEOPLE OF MI V KEVIN S GAMBURD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 29, 2001
Plaintiff-Appellant,
v
No. 226389
Wayne Circuit Court
LC No. 98-012571
KEVIN S. GAMBURD,
Defendant-Appellee.
Before: McDonald, P.J., and Murphy and Meter, JJ.
PER CURIAM.
The prosecution appeals as of right from the trial court’s order of probation, finding
defendant guilty of possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d), and
sentencing defendant to eighteen months’ probation. Defendant was charged with possession
with intent to deliver marijuana, MCL 333.7401(2)(d)(iii); MSA 14.15(7401(2)(d)(iii), and
following a bench trial, the trial court found him guilty of that offense. However, the trial court
granted defendant’s motion to vacate the conviction before a judgment was entered and reduced
the conviction to possession of marijuana. We reverse and remand.
The prosecution first argues that the trial court erred in excluding Officer Burnside’s
testimony that nine pounds of suspected marijuana was taken from a refrigerator in defendant’s
storage unit and by not inferring that defendant was in possession of nine pounds of marijuana.
However, the prosecution did not identify these issues in its statement of questions presented as
required by MCR 7.212(C)(5). A party does not preserve an argument that it did not raise in its
statement of the issues presented. People v Brown, 239 Mich App 735, 748; 610 NW2d 234
(2000). The prosecution has, therefore, waived review of these issues.
The prosecution also argues that the trial court committed reversible error by amending
its original verdict.1 MCR 6.435(B) allows a trial court to correct substantive mistakes, provided
the trial court has not yet entered judgment in the case. This Court, in People v Carlos Jones,
1
This Court has jurisdiction over this issue because, if the prosecution prevails, the original
verdict would be reinstated and if defendant prevails, the judgment will be affirmed. In either
case, defendant will not be subject to a second trial and the Double Jeopardy Clause does not bar
this Court’s review. People v Hutchinson, 224 Mich App 603, 606-607; 569 NW2d 858 (1997).
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203 Mich App 74, 80; 512 NW2d 26 (1993), defined substantive mistakes as “a conclusion or
decision that is erroneous, because it is based on a mistaken belief in the facts or the applicable
law.” However, the trial court may not simply reevaluate the evidence and come to a different
conclusion. Id.
When it found defendant guilty of possession with intent to deliver marijuana, the trial
court made the following statement:
The Court will find that the amount of the marijuana was at least 121.3 [sic]2
grams. That that is a sufficient amount for the Court to infer that it was not solely
for the purpose of personal use, and will find the defendant guilty of one count of
possession of a controlled substance, same being marijuana, with the intent to
deliver.
Pursuant to defendant’s motion to set aside or amend the verdict, the trial court corrected the
finding of guilt for possession with intent to deliver because it found that it had made an error of
law. The trial court made the following statement:
Based on the amount of marijuana that was admitted into evidence, which was
limited to 121 [sic] grams, which is the equivalent of about four ounces, and given
the Kirchoof [sic] case which says there is permissible presumption that one must
look at the amount, and absent any other evidence in terms of the packaging or
any transaction that had occurred, the Court will reduce the conviction from
possession with intent to deliver to simple possession.
It appears that the trial court’s understanding of the law when it found defendant guilty of
possession with intent to deliver was that 131 grams of marijuana was a large enough amount to
infer intent to deliver and that, after the motion to vacate, the trial court’s understanding of the
law was that 131 grams of marijuana was not a large enough amount to infer intent to deliver
without other evidence of intent.
One of the elements of possession with intent to deliver less than fifty grams marijuana is
that the defendant knowingly possess the controlled substance with the intent to deliver. People
v Wolfe, 440 Mich 508, 517; 489 NW2d 748 (1992). “Actual delivery is not required to prove
intent to deliver. Intent to deliver has been inferred from the quantity of narcotics in a
defendant’s possession, from the way in which those narcotics are packaged, and from other
circumstances surrounding the arrest.” Id. at 524. “Possession with intent to deliver can be
established by circumstantial evidence and reasonable inferences arising from that evidence, just
as it can be established by direct evidence.” Id. at 526.
Here there was no circumstantial evidence of intent to deliver other than the amount of
marijuana found. In amending its verdict, the trial court cited People v Kirchoff, 74 Mich App
641, 647-649; 254 NW2d 793 (1977), and concluded that additional circumstantial evidence is
2
The parties stipulated that the amount of marijuana actually tested by the laboratory was 131
grams.
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required. However, the Kirchoff Court affirmed the trial court’s denial of the defendant’s motion
for a directed verdict because there was evidence in addition to the amount of controlled
substance found, from which an intent to deliver could be inferred. The Kirchoff Court did not
require other evidence of intent. Id.
Likewise, Wolfe permits but does not require other circumstantial evidence of an intent to
deliver beyond the quantity of narcotics found. Wolfe, supra at 526. Further, numerous other
cases have held that intent to deliver can be inferred from the amount of controlled substance.
People v Ferguson, 94 Mich App 137, 151; 288 NW2d 587 (1979); People v Potter, 115 Mich
App 125, 130; 320 NW2d 313 (1982); People v Catania, 159 Mich App 57, 61; 406 NW2d 473
(1987); People v Catanzarite, 211 Mich App 573, 578; 536 NW2d 570 (1995). Because intent to
deliver may be inferred from the amount of controlled substance possessed without other
circumstantial evidence, the trial court abused its discretion in modifying defendant’s conviction.
The trial court was correct in its first understanding of the law and did not make an error of law
that needed to be corrected via MCR 6.435(b).
Reversed. We remand for reinstatement of defendant’s conviction for possession with
intent to deliver marijuana and for resentencing. We do not retain jurisdiction.
/s/ Gary R. McDonald
/s/ William B. Murphy
/s/ Patrick M. Meter
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