PEOPLE OF MI V SHEILA ROSE MARKEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 15, 2007
Plaintiff-Appellee,
v
No. 264005
Presque Isle Circuit Court
LC No. 04-092208-FC
SHEILA ROSE MARKEY,
Defendant-Appellant.
Before: Markey, P.J., and Saad and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right from her convictions following a jury trial of conspiracy to
possess 50 to 449 grams of cocaine, MCL 750.157a, MCL 333.7403(2)(a)(iii), aiding and
abetting1 possession with intent to deliver 50 to 224 grams of cocaine, MCL 333.7401(2)(a)(iii),
and aiding and abetting possession with intent to deliver under 5 kilograms of marijuana, MCL
333.7401(2)(d)(iii). Defendant was sentenced to concurrent prison terms of 2 years and 6
months to 20 years for the conspiracy to possess cocaine charge, 4 years and 6 months to 20
years for the aiding and abetting possession with intent to deliver cocaine charge, and 1 year 6
months to 4 years for the aiding and abetting possession with intent to deliver marijuana charge.
We affirm.
Defendant’s convictions arose after a man named William Moran, driving north from
Florida to Michigan, was caught by Georgia authorities with large quantities of marijuana and
cocaine in his car. Moran made a deal with police whereby he promised to deliver the drugs to
his contact in Michigan while under police surveillance. Moran’s Michigan contact was
defendant’s boyfriend. After police witnessed the delivery, they arrested defendant’s boyfriend
on multiple drug charges. Defendant was subsequently charged on the basis that she had wired
money to Moran, on behalf of her boyfriend, as part of the drug transactions, and that she aided
and abetted at least one drug delivery by Moran to defendant’s boyfriend.
Defendant first argues that Presque Isle County was an improper venue to try her for the
aiding and abetting possession with intent to distribute 50 to 224 grams of cocaine and the aiding
1
MCL 767.39.
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and abetting possession with intent to distribute under 5 kilograms of marijuana charges. We
disagree. A trial court’s determination regarding the existence of venue in a criminal prosecution
is reviewed de novo. People v Webbs, 263 Mich App 531, 533; 689 NW2d 163 (2004). “Venue
is part of every criminal prosecution and must be proved by the prosecutor beyond a reasonable
doubt.” People v Fisher, 220 Mich App 133, 145; 559 NW2d 318 (1996). “Due process
requires that trial of criminal prosecutions should be by a jury of the county or city where the
offense was committed, except as otherwise provided by the Legislature.” Id. “Whenever a
felony consists or is the culmination of two or more acts done in the perpetration thereof, the
felony may be prosecuted in any county in which any one of the acts was committed.” MCL
762.8; see also Webbs, supra at 533.
One of the acts committed that culminated in the arrest of defendant’s boyfriend for
receiving cocaine on February 29, 2006 was the boyfriend’s receipt of directions on where to
meet Moran to pick up the drugs. Moran testified that he would call defendant’s boyfriend to
make such arrangements at the boyfriend’s place of residence in Presque Isle County. Calling
defendant’s boyfriend was a necessary step to arrange the meeting, and therefore this call
constitutes an act that was part of a culmination of acts, resulting in the delivery of the drugs and
completing the felony of receiving cocaine with the intent to distribute it. Since that predicate
act was in Presque Isle County, the resulting felony was eligible for prosecution in Presque Isle
County. MCL 762.8; Webbs, supra at 533. Therefore, the trial court properly found Presque Isle
County had venue to try the charges of receiving cocaine and marijuana with intent to distribute.
Defendant next argues that there was insufficient evidence to support her conviction of
conspiracy to receive 50 to 449 grams of cocaine. We disagree. To determine whether there was
sufficient evidence to support a conviction, this Court reviews the evidence de novo in the light
most favorable to the prosecution, and decides whether any rational fact-finder could have found
that the essential elements of the crime were proven beyond a reasonable doubt. People v
Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).
Defendant admitted to the police that she knew her boyfriend was obtaining some
quantity of cocaine as part of his dealings with Moran and she admitted she sent money to Moran
on her boyfriend’s behalf to finance his purchases of drugs from Moran. Therefore, there is
clearly evidence establishing her agreement with her boyfriend to arrange his possession of some
quantity of cocaine. MCL 333.7403(2)(a). But a conspiracy to receive or deliver a given
amount of drugs necessarily requires proving, as an element of that offense, that a defendant
specifically intended to deliver or receive the amount required for the offense underlying the
conspiracy. People v Mass, 464 Mich 615, 638-639; 628 NW2d 540 (2001). So, in order to
sustain defendant’s conviction of conspiracy to receive 50 to 449 grams of cocaine, there must be
sufficient evidence to support a reasonable fact-finder’s conclusion that it was established
beyond a reasonable doubt that defendant specifically agreed to receive at least 50 grams of
cocaine. Id.
There was no direct evidence that defendant ever had any conversation with anyone
regarding specific quantities of cocaine. However, Moran testified that defendant was present
during one of his first three deliveries to her boyfriend, sitting in the backseat of her boyfriend’s
car, while he and her boyfriend sat in the front. Moran testified that he delivered 3 ounces of
cocaine (over 80 grams) on his second delivery. Moran testified that he normally pulled out at
least one bag of each drug when he delivered to defendant’s boyfriend. Viewing this evidence in
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the light most favorable to the prosecutor, a reasonable fact-finder could conclude that defendant
was present during the second delivery, that she could see from the backseat the 3 ounce bag of
cocaine Moran pulled out, and that because there was at least one more cocaine delivery after
that, defendant knew that a subsequent delivery would contain at least as much cocaine as the
previous delivery.2 Therefore, there was sufficient evidence to support a reasonable fact-finder’s
conclusion beyond a reasonable doubt that defendant conspired to receive 50 to 449 grams of
cocaine.
Defendant last argues that there was insufficient evidence to support her conviction of
aiding and abetting receiving with the intent to distribute 50 or more grams of cocaine. We
disagree. Aiding and abetting is not a separate offense, but instead is a way to impose vicarious
liability for accomplices to a substantive offense. People v Robinson, 475 Mich 1, 6; 715 NW2d
44 (2006). Three elements are necessary to establish criminal liability under an aiding and
abetting theory:
“(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the commission
of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement.” [People v Moore, 470 Mich 56, 67-68;
679 NW2d 41 (2004), quoting People v Carines, 460 Mich 750, 768; 597 NW2d
130 (1999).]
The elements of possession of 50 to 449 grams of cocaine with intent to deliver cocaine are:
(1) the defendant knowingly possessed a controlled substance; (2) the defendant
intended to deliver this substance to someone else; (3) the substance possessed
was cocaine and the defendant knew it was cocaine; and (4) the substance was in
a mixture that weighed [50 to 449 grams]. [People v Crawford, 458 Mich 376,
389; 582 NW2d 785 (1998).]
However, “knowledge of the amount of a controlled substance is not an element of a delivery
charge” because “delivery of a controlled substance is a general intent crime.” Mass, supra at
627. And so to convict on an aiding and abetting theory, it is “enough for the prosecution to
show that [a defendant] . . . knowingly delivered or aided in the delivery of some amount of
cocaine, as long as the jury later determined that . . . [at least as much as is required by the statute
was] in fact delivered.” Id. at 628.
2
While defendant could not know with any great precision, from her perspective in the backseat,
how much was in the bag of cocaine, even if she was off by a significant amount in her estimate
as to quantity (as much as 40 percent), that would still be an amount over the 50 grams as
required under MCL 333.7403(2)(a)(iii). That there was, in fact, more than one delivery after
that allows an even larger margin of error because the aggregate of those further deliveries would
easily exceed 50 grams of cocaine.
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Moran testified that defendant’s boyfriend bought cocaine from him to sell in Michigan.
Moran testified that the cocaine he brought up for defendant’s boyfriend on this last occasion
was in excess of 50 grams (totaling 9½ ounces at 28 grams per ounce). A police officer testified
that the cocaine seized from defendant’s boyfriend at his arrest exceeded 50 grams. Taken
together in the light most favorable to the prosecutor, this is sufficient evidence that the crime
charged was committed by defendant’s boyfriend.
Moran testified that the last money transfer of approximately $5,600 was, in part,
payment in advance for the drugs he brought to defendant’s boyfriend on this last occasion, and
the police found a receipt for $5,650 in the boyfriend’s residence. This is sufficient evidence that
defendant gave aid to her boyfriend in carrying out the underlying offense because, were it not
for that advance payment, Moran would not have been able to purchase the drugs in Florida.
Thus, taken in the light most favorable to the prosecutor, sufficient evidence was presented
against defendant to establish all of the elements of aiding and abetting the offense of receiving
50 to 449 grams of cocaine with the intent to deliver.
Affirmed.
/s/ Jane E. Markey
/s/ Henry William Saad
/s/ Kurtis T. Wilder
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