PEOPLE OF MI V SHERI LYNN KERSEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 19, 2007
Plaintiff-Appellee,
v
No. 267372
Allegan Circuit Court
LC No. 05-014204-FH
SHERI LYNN KERSEY,
Defendant-Appellant.
Before: Servitto, P.J., and Talbot and Schuette, JJ.
PER CURIAM.
Defendant appeals as of right her bench-trial conviction of delivery or manufacture of
marijuana, MCL 333.7401(2)(d)(iii). She was sentenced to six months in jail and three years’
probation. We affirm. We decide this appeal without oral argument under MCR 7.214(E).
I. FACTS
The charge against defendant arose after a federal postal inspector intercepted a package
addressed to defendant’s home. The agent suspected that the package contained marijuana.
After a narcotics dog alerted to the package, the agent obtained a search warrant and opened the
package. The package contained a substance in “brick” form that weighed two pounds. A field
test determined that the substance was marijuana. The agent contacted a drug enforcement team
and the team decided to conduct a controlled delivery. The agent installed a radio-tracking
device in the package.
The agent and other officers tracked the package as it was delivered to an individual at
defendant’s home on April 25, 2005. A short while later, the tracking device indicated that the
package was being moved from the residence. An officer subsequently stopped defendant, who
was driving her car. The package was on the front seat next to her. Defendant admitted that she
knew that the package contained marijuana. She maintained that she had been forced to deliver
the package because her husband owed a drug debt to an individual from Texas who had
threatened to hurt her family if she did not accept the package and deliver it. An officer also
testified that, during a search of defendant’s home, the police found a piece of paper on the
dining room table. The paper contained names and numbers on it, and that “marijuana” was
written on it twice.
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Michigan State Police forensic scientist Susan Isley testified as an expert in drug
detection and analysis. She conducted various tests, and concluded that the substance defendant
was transporting was marijuana. She first performed a microscopic test, which she claimed is
the primary test for detecting marijuana. A visual examination revealed leaf fragments, types of
crystalline “hairs,” patterns, and structures that were consistent with a marijuana plant. During
cross-examination, she admitted that certain other plants have a similar structure. Isley also
testified that she performed a Duquenois-Levine chemical test on the substance. She described
the test as “highly selective” rather than “specific” in that it would detect the presence of various
cannabinoids, including tetrahydrocannabinol (THC), the psychoactive ingredient of marijuana,1
but was not specific for THC alone. Isley described the test procedure, with its “purple positive”
result. She first stated that no other naturally occurring substance would produce this result, but
then testified that one other plant out of 600 tested in a previous study produced a positive result
from the test. Isley acknowledged that the presence of THC could be confirmed using a gas
chromatography mass spectrometry test, but maintained that that test was not usually performed
unless the sample involved small seedlings that did not have enough resin on which to perform a
Duquenois-Levine test. She also acknowledged that THC could be removed from marijuana
through the use of hexine. She opined that the sample contained THC because the only cases in
which she had not found THC in a marijuana sample involved a seedling.
Defendant presented the testimony of Bradley Chote, the supervisor of the Michigan
State Police’s drug analysis unit. He testified that the Duquenois-Levine test and the
microscopic examination were the tests currently used to identify marijuana. He testified that
certain types of coffee could produce a positive result to the chemical test. He concurred with
Isley’s testimony that the chemical test was not THC specific. However, he testified that he had
never encountered any other plant that had given a positive result. He maintained that the
microscopic test was the best indicator to determine whether a substance was marijuana. Like
Isley, Chote testified that seedlings would not necessarily produce THC. However, he also
stated that he would expect all mature marijuana plants to contain THC. He testified that he had
“never seen anything that looks like marijuana once it’s under the microscope.”
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that, because the prosecutor did not establish to an absolute certainty
that the marijuana seized from her car contained tetrahydrocannabinol (THC), the evidence was
insufficient to support her conviction. We disagree.
A. Standard of Review
When reviewing a challenge to the sufficiency of the evidence in a bench trial, we view
the evidence presented in a light most favorable to the prosecution, and determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt. The trier of fact may make reasonable inferences from evidence in the record,
1
See People v Derror, 475 Mich 316, 319; 715 NW2d 822 (2006); People v Sinclair, 387 Mich
91, 105-106; 194 NW2d 878 (1972).
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but may not make inferences completely unsupported by any direct or circumstantial evidence.
People v Petrella, 424 Mich 221, 268-270, 275; 380 NW2d 11 (1985); People v Vaughn, 186
Mich App 376, 379-380; 465 NW2d 365 (1990). Satisfactory proof of the elements of a crime
can be shown by circumstantial evidence and reasonable inferences arising therefrom. People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
B. Analysis
MCL 333.7401(2)(d)(iii) prohibits the possession with intent to deliver less than five
kilograms or 20 plants of “Marihuana or a mixture containing marihuana.” In order to support
defendant’s conviction, the prosecutor was required to demonstrate the following elements
beyond a reasonable doubt: (1) that defendant manufactured or delivered a controlled substance,
(2) that the substance delivered or manufactured was marijuana, and (3) that defendant knew she
was delivering or manufacturing marijuana. MCL 333.7401(2)(d)(iii); CJI2d 12.2.2 The term
“marijuana” is defined in MCL 333.7106(3) as follows:
“Marihuana” means all parts of the plant Canabis sativa L., growing or not; the
seeds thereof; the resin extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or
resin. It does not include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other compound
manufacture, salt, derivative, mixture, or preparation of the mature stalks, except
the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant
which is incapable of germination.
First, as noted by plaintiff, the statute does not require the prosecutor to establish the
presence of THC in the marijuana sample. Moreover, even if we were to agree with defendant’s
contention that the prosecutor must show that the marijuana sample contains some level of THC
to support a conviction under MCL 333.7401(2)(d)(iii), defendant could not prevail. Both the
prosecutor’s expert witness and defendant’s expert witness testified that the combination of
microscopic analysis and a Duquenois-Levine chemical reagent test were commonly used to
determine whether a substance was marijuana. Such a combined analysis was used in the instant
case to determine the identity of the substance seized from defendant. While both experts agreed
that the chemical test was not “specific” for THC, but could also register a positive result in the
presence of other related cannabinoids, they also maintained that they would expect to find the
presence of THC in any marijuana sample subjected to further specific testing, possibly apart
from immature seedlings. Given this testimony, as well as the discussion in case law that all
marijuana contains some level of THC,3 we find that the prosecutor established that the
substance tested was marijuana, and that THC was present to a certainty sufficient to support the
2
“Delivery” is defined as “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).
3
Sinclair, supra at 105-106. See also People v Riddle, 65 Mich App 433, 436-437; 237 NW2d
491 (1975).
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conviction. That the prosecutor must establish proof beyond a reasonable doubt does not equate
to a showing of guilt to an absolute certainty. People v Bowman, 254 Mich App 142, 150; 656
NW2d 835 (2002). Nor was the prosecutor required to disprove defendant’s theory that the THC
was somehow removed with a solvent in an unspecified manner, or that this particular sample
happened to be a “marijuana light” variation of the plant. People v Nowack, 462 Mich 392, 400;
614 NW2d 78 (2000).
We have long rejected defendant’s other argument, i.e., that the prosecution failed to
introduce sufficient evidence to support the conviction because it did not show that the marijuana
was specifically of the Cannabis sativa L. variety of the plant. Riddle, supra at 439-440; People
v Rodriguez, 65 Mich App 723, 729; 238 NW2d 385 (1975).
Affirmed.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Bill Schuette
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