PEOPLE OF MI V JOSE BOGAR IZARRARAS-PLACANTE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 19, 2001
9:05 a.m.
Plaintiff-Appellee,
v
No. 222707
Muskegon Circuit Court
LC No. 99-043463-FH
JOSE BOGAR IZARRARAS-PLACANTE,
Defendant-Appellant.
Updated Copy
August 31, 2001
Before: Talbot, P.J., and Sawyer and Markey, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for delivery of at least 50 but
less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii), conspiracy to deliver at least 50 but
less than 225 grams of cocaine, MCL 750.157a(a), fleeing and eluding a police officer, MCL
750.479a(3), and possession with intent to deliver less than 50 grams of cocaine, MCL
333.7401(2)(a)(iv). On October 5, 1999, the trial court sentenced defendant to ten to twenty
years in prison for the delivery conviction, ten to twenty years in prison for the conspiracy
conviction, no incarceration for the fleeing and eluding conviction, and one to twenty years in
prison for the possession with intent to deliver conviction. We affirm the convictions and
sentences.
On May 17, 1999, undercover Police Detective Thomas Fine telephoned Jorge Rodriguez
to arrange a cocaine purchase. Fine had purchased cocaine from Rodriguez on nine previous
occasions in 1999, and defendant had accompanied Rodriguez to four of those sales.1 On May
1
These transactions all occurred in parking lots. According to Fine's testimony, defendant drove
Rodriguez to prior sales on April 20, 1999, and May 11, 1999. Defendant arrived in the car with
Rodriguez at sales on April 23, 1999, and May 7, 1999. On all these occasions, defendant waited
in the car while Rodriguez got out of the car and walked to Fine's vehicle. The record is
somewhat vague regarding the proximity of the vehicles at each sale. Fine testified that at the
April 23 sale their cars were "not close at all," and at the May 11 sale the vehicles were parked
about thirty or forty feet apart.
-1-
17, Fine met defendant and Rodriguez in a parking lot. Defendant drove the car in which he and
Rodriguez arrived. Rodriguez got out of the car and walked to Fine's car with a bag in his hand.
The bag contained 55.908 grams of cocaine. Rodriguez handed the bag to Fine, and Fine gave
Rodriguez $2,200. Rodriguez returned to his car. At Fine's signal, a van carrying the arrest team
stopped behind their car. Rodriguez and defendant fled in their car. Marked police cars chased
defendant and Rodriguez through Muskegon. Ultimately, defendant and Rodriguez stopped the
car and were arrested.
A subsequent search of defendant's home revealed 28.941 grams of cocaine, money
which had been used by the police to purchase cocaine from Rodriguez, and a scale and plastic
sandwich bags that are consistent with the distribution of cocaine. The cocaine and scale were
found inside the pocket of a shirt hanging in a closet of an upstairs bedroom. A safe containing a
Michigan identification card with defendant's picture was found on the floor of the closet. At
trial, evidence of the ten cocaine sales to Fine was presented to the jury.
On appeal, defendant first contends that evidence of the nine prior drug sales was
improperly admitted at trial because it was not relevant. We review evidentiary decisions for an
abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998); People v Snider,
239 Mich App 393, 419; 608 NW2d 502 (2000). To the extent that review of this issue
implicates due process concerns, review is de novo. People v Sierb, 456 Mich 519, 522; 581
NW2d 219 (1998); People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999). Defendant
argued at trial that the evidence was not relevant to a determination of guilt because he was not
present during some of the sales, did not handle money or drugs during other sales, and did not
speak directly with Fine at any point.
Evidence is relevant if it has any tendency to make the existence of a fact that is of
consequence to the action more probable or less probable than it would be without the evidence.
MRE 401; People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998). "Establishing a
conspiracy requires evidence of specific intent to combine with others to accomplish an illegal
objective." People v Blume, 443 Mich 476, 481; 505 NW2d 843 (1993). The prosecution was
required to prove that defendant and Rodriguez had the specific intent to combine to deliver
more than 50 but less than 225 grams of cocaine. People v Justice (After Remand), 454 Mich
334, 349; 562 NW2d 652 (1997).
Although defendant was not present during sales of cocaine to Fine on March 18, 1999,
March 30, 1999, April 14, 1999, and May 4, 1999, these sales were relevant to prove the
existence of a conspiracy by showing that Rodriguez had the intent to distribute cocaine. The
intent of a coconspirator to perform an unlawful act is an essential element of a criminal
conspiracy. Id. at 349. The fact that defendant was not directly linked to these four drug sales is
of no moment. It is not necessary that one conspirator participate in all the objects of the
conspiracy. People v Meredith (On Remand), 209 Mich App 403, 411-412; 531 NW2d 749
(1995). All four sales were made on the premises of the employer of defendant and Rodriguez.
During the March 30 sale, Rodriguez indicated to Fine that Rodriguez would need to check to see
-2-
if he could obtain two ounces of cocaine for Fine. This evidence was relevant to show that
Rodriguez had the intent to sell cocaine and that another person was involved in purchasing the
cocaine.
With respect to the remaining sales, the record reflects that Rodriguez spoke with
defendant during the sales to Fine on May 7, 1999, and May 11, 1999. Defendant drove
Rodriguez to the sale on May 11, 1999. The record reflects that Rodriguez identified defendant
as his partner during the April 20, 1999, drug sale. Defendant also drove Rodriguez to the April
23, 1999, sale and Rodriguez indicated to Fine that the profits from the sale were split evenly
between himself and another person. During the April 28, 1999, sale, Rodriguez told Fine that
Rodriguez would have to check with "Jose" before he could purchase a kilo of cocaine.
Rodriguez had introduced defendant to Fine as "Jose." Notably, marked funds from the April 28
sale were found in the safe containing defendant's identification card. We conclude that evidence
of the nine prior drug sales was relevant to establish the existence of a conspiracy.
Defendant also contends that the prejudicial nature of this evidence deprived him of a fair
trial. Defendant did not argue the prejudicial nature of this evidence below. Accordingly, this
issue is unpreserved. People v Griffin, 235 Mich App 27, 44; 597 NW2d 176 (1999). For the
reasons set forth in our analysis above, we conclude that the probative nature of the evidence far
outweighs its prejudicial effect. See People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995),
mod 450 Mich 1212 (1995), quoting United States v McRae, 593 F2d 700, 707 (CA 5, 1979)
("Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially
outweighing probative value, which permits exclusion of relevant matter under Rule 403."). We
find no error. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Defendant next argues that the evidence was insufficient to convict him of delivery of
more than 50 but less than 225 grams of cocaine. In reviewing challenges to the sufficiency of
evidence, we view the evidence in the light most favorable to the prosecutor and determine
whether a rational trier of fact could find that the essential elements of the crime were proved
beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).
A person who aids or abets the commission of a crime may be convicted and punished as
if he directly committed the offense. MCL 767.39; People v Turner, 213 Mich App 558, 568;
540 NW2d 728 (1995). "To support a finding that a defendant aided and abetted a crime, the
prosecution must show that (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 he gave aid and encouragement." Id. at 568.
Defendant confessed to a police officer that he had purchased in Grand Rapids the 55.908
grams of cocaine sold to Detective Fine on May 17, 1999. During their tape-recorded telephone
conversation to arrange the sale, Fine negotiated with Rodriguez regarding the price of the
cocaine. The tape indicated that Rodriguez discussed the price of the cocaine with another
-3-
person, whose voice Fine recognized as defendant's. Defendant also drove Rodriguez to the drug
sale on May 17. We believe this evidence, combined with the evidence that showed Rodriguez
delivered the cocaine to Fine, constitutes sufficient evidence to convict defendant on an aiding
and abetting theory. MCL 767.39; People v Norris, 236 Mich App 411, 419; 600 NW2d 658
(1999); Turner, supra at 568 (The aiding and abetting statute encompasses all forms of assistance
rendered to the perpetrator of a crime and comprehends all words or deeds that might support,
encourage, or incite the commission of a crime).
Finally, defendant argues that the trial court abused its discretion in refusing to depart
downward from the statutorily mandated ten-year minimum sentence for his delivery and
conspiracy convictions.2 Pursuant to the new statutory sentencing guidelines, his recommended
minimum sentence ranges from three years and nine months to six years and three months.
Defendant contends that in light of this disparity the minimum sentence under the guidelines in
and of itself constitutes a substantial and compelling reason to depart from the mandatory tenyear minimum sentence.
The sentencing court may depart from the minimum term if it finds "substantial and
compelling reasons to do so." MCL 333.7401(4); People v Daniel, 462 Mich 1, 4; 609 NW2d
557 (2000). Our Supreme Court has held that substantial and compelling reasons must be based
on objective and verifiable factors. People v Fields, 448 Mich 58, 68-69; 528 NW2d 176 (1995).
Only in exceptional cases should sentencing judges deviate from the minimum prison terms
mandated by statute. Daniel, supra at 6, citing Fields. We review for an abuse of discretion the
trial court's determination that substantial and compelling reasons do not exist to support
departure from the mandatory minimum sentence pursuant to MCL 333.7401(4). Fields, supra
at 78. To the extent that our review of this issue requires statutory interpretation and application,
our review is de novo. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998); People v
Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).
The Legislature recently codified the sentencing guidelines. The statute expressly
provides that "if a crime has a mandatory determinant penalty . . . the court shall impose that
penalty." MCL 769.34(5). Additionally, the Legislature made the sentencing guidelines
applicable to controlled substance offenses. MCL 777.13. Notwithstanding the mandatory
sentences prescribed by the controlled substances act, defendant argues that the inclusion of these
offenses in the sentencing guidelines statute indicates the Legislature's intention that the court
consider the guidelines in deciding whether to depart from the mandatory minimum sentence.
Further, defendant maintains that to ignore the Legislature's inclusion of sentencing guidelines
for drug offenses would render this inclusion in the sentencing guidelines meaningless and
unnecessary. We disagree.
2
Pursuant to MCL 750.157a(a), a person convicted of conspiracy "shall be punished by a penalty
equal to that which could be imposed if he had been convicted of committing the crime he
conspired to commit[.]" See People v Denio, 454 Mich 691, 700; 564 NW2d 13 (1997).
-4-
The statutory sentencing guidelines, MCL 777.1 et seq., MCL 777.13, and the controlled
substances act, MCL 333.7101 et seq., address sentences for drug offenders. Statutes that relate
to the same subject or share a common purpose are "in pari materia" (literally, "upon the same
matter or subject"). Webb, supra at 274; People v Stephan, 241 Mich App 482, 497; 616 NW2d
188 (2000). Such statutes must be read together as one law, even if they contain no reference to
one another and were enacted on different dates. Webb, supra at 274; Stephen, supra at 497.
When construing statutes that are in pari materia, our goal is to further legislative intent by
finding an harmonious construction of the related statutes, so that the statutes work together
compatibly to realize that legislative purpose. Id. at 497-498. Accordingly, if two statutes lend
themselves to a construction that avoids conflict, then that construction should control. Webb,
supra at 274; Stephan, supra at 498. "When construing a statute, the court should presume that
every word has some meaning and should avoid any construction that would render the statute, or
any part of it, surplusage or nugatory." Id. at 497.
Employing these principles and construing the two statutes, we believe that it is
inappropriate to rely on the recommended minimum sentence under the guidelines as a
substantial and compelling reason to depart from the mandatory minimum terms prescribed by
the statute. Instead, we reconcile these statutory provisions by concluding that only in cases
where substantial and compelling reasons exist to warrant a departure may the court then
consider the guidelines in determining the magnitude of the departure. Our conclusion is
consistent with the recognized legislative goals of "keep[ing] drug dealers in prison for long
periods, both to remove them from society and to deter others from following their example."
Fields, supra at 67-68.
During sentencing, defense counsel argued that defendant's age (twenty) and the absence
of a prior record militated in favor of departure from the required minimum term. The trial court
acknowledged and properly considered these factors. See id. at 77. The court then proceeded to
observe that defendant worked with an associate who seemed to look toward defendant for
guidance in the drug sales, and defendant was willing and able to deliver a significant amount of
drugs to Fine. We find no abuse of discretion in the court's refusal to depart from the mandatory
minimum sentence. Accordingly, defendant is not entitled to resentencing.
Affirmed.
/s/ Michael J. Talbot
/s/ David H. Sawyer
/s/ Jane E. Markey
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.