PEOPLE OF MI V LEE ALLEN HAYES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 17, 2009
Plaintiff-Appellee,
v
No. 281049
Grand Traverse Circuit Court
LC No. 07-010313-FC
LEE ALLEN HAYES,
Defendant-Appellant.
Before: Sawyer, P.J., and Servitto and M. J. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction following a jury trial of possession with
intent to deliver less than 50 grams of cocaine within 1,000 feet of a school, MCL 333.7410(3),
and conspiracy to deliver less than fifty grams of cocaine, MCL 750.157a and MCL
333.7401(2)(a)(iv). Defendant was sentenced by Grand Traverse Circuit Court Judge Thomas
Power on September 28, 2007, as a habitual offender fourth offense, MCL 769.12, to
consecutive terms of 3½ years to 20 years in prison for conspiracy and 3½ to 40 years in prison
for the possession with intent to deliver. We affirm.
Defendant first argues that he was denied a fair trial because the jury received an
inaccurate instruction on the elements of possession with intent to deliver less than 50 grams of
cocaine within 1,000 feet of a school. The trial court instructed the jury on the charge as follows:
To prove this charge the prosecutor must prove each of the following
elements beyond a reasonable doubt: First, that the Defendant knowingly
possessed a controlled substance. Second, that the Defendant intended to deliver
this substance to someone else. Third, that the substance possessed was cocaine
and the Defendant knew it was cocaine. Fourth, that the substance was in a
mixture that weighed less than 50 grams. And fifth, that the Defendant possessed
the substance on or within 1000 feet of school property. It is not necessary that
the Defendant knew he was within 1000 feet of a school. And sixth, that the
Defendant was at least 18 years of age.
Before closing arguments, the trial court reviewed the instructions to be given and defense
counsel agreed that the above instruction accurately reflected the parties’ discussions. Defense
counsel again verified the accuracy of the instructions after the trial court had read the
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instructions to the jury. Thus, this issue has been waived. People v Lueth, 253 Mich App 670,
688; 660 NW2d 322 (2002).
Alternatively, defendant argues that he received the ineffective assistance of trial counsel
when counsel agreed to the above instruction. In order to prevail on a claim of ineffective
assistance of counsel, defendant must show: (1) counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms; (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different;
and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Rodgers,
248 Mich App 702, 714; 645 NW2d 294 (2001). In addition, defendant must also overcome a
strong presumption that counsel’s actions were the product of sound trial strategy. People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
Jury instructions must clearly present the case and the applicable law to the jury,
including all elements of the charged offense. People v McGhee, 268 Mich App 600, 606; 709
NW2d 595 (2005). An error in instructing on the elements of the crime is of constitutional
dimension. People v Carines, 460 Mich 750, 761; 597 NW2d 130 (1999). However, a
defendant cannot establish error by extracting piecemeal portions of the jury instructions, which
should be read as a whole. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
Even imperfect jury instructions will not serve as a basis for reversal if they fairly presented the
issues to be tried and sufficiently protected the defendant’s rights. People v Clark, 274 Mich
App 248, 255-256; 732 NW2d 605 (2007).
CJI2d 12.3 is a general instruction for unlawful possession of a controlled substance with
intent to deliver. It states is relevant part as follows:
First, that the defendant knowingly possessed a controlled substance.
Second, that the defendant intended to deliver this substance to someone
else.
Third, that the substance possessed was __________ and the defendant
knew it was.
Fourth, that the substance was in a mixture that weighed (state weight).
[Ordinals, footnotes, and brackets omitted.]
It seems clear that the instruction given on possession with intent to deliver less than 50 grams of
cocaine within 1,000 feet of a school simply added two elements—on age and distance from
school property—to this general instruction.
Defendant argues that the jury was improperly instructed on the second element of the
charged offense for possession with intent to deliver within 1,000 feet of a school when the trial
court said that defendant had to have intended to deliver the cocaine to “someone else,” rather
than “someone else within 1,000 feet of a school area.” MCL 333.7410(3) states as follows:
An individual 18 years of age or over who violates section 7401(2)(a)(iv)
by possessing with intent to deliver to another person on or within 1,000 feet of
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school property or a library a controlled substance described in schedule 1 or 2
that is either a narcotic drug or described in section 7214(a)(iv) shall be punished,
subject to subsection (5), by a term of imprisonment of not less than 2 years or
more than twice that authorized by section 7401(2)(a)(iv) and, in addition, may be
punished by a fine of not more than 3 times that authorized by section
7401(2)(a)(iv).
Subsections (2) through (6) were added to MCL 333.7410 by 1988 PA 12. Looking at
these subsections as a whole, it is clear that the intent of the 1988 legislation was to deter drug
trafficking near or on school property1 by those 18 years old or over. Subsections (2) through (4)
increase the penalties provided for the underlying sale or possession drug crimes based upon the
age of the violator and the distance from school property. Thus, the requisite intent of the crime
in issue is the intent to deliver to someone “on or within 1,000 feet of school property.” It is not
sufficient that a defendant would have possessed the drug within 1,000 feet but intended to
deliver the drug to someone outside the proscribed zone. Accordingly, because the instruction
given was in error and the error was plain given the statutory language, an objection to the
proposed and delivered instruction would not have been meritless. People v Kulpinski, 243 Mich
App 8, 27; 620 NW2d 537 (2000).
Nonetheless, a review of the record shows that the result of the proceedings was unlikely
to change even if the court had given a correct instruction. The woman who carried the drugs on
her person for defendant testified that defendant asked her to travel with him to Traverse City in
order to “make money” and to carry several bags of cocaine, which the woman placed in the area
of her crotch. The woman described one drug sale completed in the middle of a road and noted
that defendant instructed her to bring the cocaine with her when they left the motel room they
went to after this first transaction. The parties stipulated that where defendant and the woman
then drove to was within 1,000 feet of school property. The owner of the home at this location
had been arrested earlier in the day on drug charges. Given this evidence, defendant cannot
establish that he was actually innocent of the crime in issue or that the integrity of the
proceedings was compromised. Carines, supra at 763.
Finally, defendant argues that he is entitled to a corrected presentence investigation
report. This asserted error was also unpreserved and is thus reviewed for plain error affecting
substantial rights. Id.
Because the Department of Corrections (DOC) makes significant decisions based on
information contained in a PSIR, a defendant is entitled to have an accurate PSIR forwarded to
the DOC. People v Norman, 148 Mich App 273, 274-275; 384 NW2d 147 (1986). However,
defendant does not assert that the challenged information is inaccurate. Rather, defendant argues
that the disputed information is irrelevant. Moreover, he does not assert that his substantial
1
“ ‘School property’ means a building, playing field, or property used for school purposes to
impart instruction to children in grades kindergarten through 12, when provided by a public,
private, denominational, or parochial school, except those buildings used primarily for adult
education or college extension courses.” MCL 333.7410(6)(b).
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rights were affected by the inclusion of this information in the PSIR. As such, defendant fails to
meet his burden under the plain error rule. Carines, supra at 763.
Affirmed.
/s/ David H. Sawyer
/s/ Deborah A. Servitto
/s/ Michael J. Kelly
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