PEOPLE OF MI V JESSICA STARR BARKLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2010
Plaintiff-Appellee,
v
No. 283458
St. Clair Circuit Court
LC No. 07-000496-FH
JESSICA STARR BARKLEY,
Defendant-Appellant.
ON REMAND
Before: SERVITTO, P.J., and O’CONNELL and ZAHRA, JJ.
PER CURIAM.
This case comes to us on remand from our Supreme Court for reconsideration in light of
People v Feezel, 486 Mich 184; 783 NW2d 67 (2010).1 The Supreme Court had held this case in
abeyance pending its Feezel decision. The Court issued its Feezel decision in June 2010,
overruling in part People v Derror, 475 Mich 316; 715 NW2d 822 (2006). At issue in both
Feezel and Derror was whether the metabolite 11-carboxy-tetrahydrocannabinol (11-carboxyTHC) is a schedule 1 controlled substance within the meaning of MCL 257.625 and MCL
333.7212. Remarkably, Feezel held that 11-carboxy-TCH is not a schedule 1 controlled
substance on the ground it is not a derivative of marijuana.2 486 Mich at 207. Derror held it is a
derivative of marijuana. 475 Mich at 331. Because Feezel is the latest decision by our Supreme
1
People v Barkley, ___ Mich ___; 789 NW2d 441 (2010).
2
We assume the Feezel holding applies only to 11-carboxy-THC and not to other metabolites. If
ingestion of a controlled substance such as cocaine or heroin produces identifiable metabolites,
presumably a defendant could still be convicted under MCL 257.625(8) for operating a motor
vehicle with such metabolites in his body.
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Court, we would be constrained to apply its holding in the instant case if the case presented a
Feezel issue. We conclude, however, that this case does not present a Feezel issue.3
Like defendant in the present case, the Feezel defendant was convicted under MCL
257.625(4) and (8) of operating a motor vehicle with the presence of a schedule 1 controlled
substance in his body, causing death. The evidence against the Feezel defendant regarding the
presence of a controlled substance was that the defendant had 11-carboxy-THC in his blood. 486
Mich at 189. Here, in contrast, the evidence against defendant included a positive THC screen of
her urine and proof that a THC metabolite was in the blood of her friend Nichols, who was with
her in the car and was killed in the crash. Nothing in defendant’s trial presented a factual or legal
issue concerning the presence or absence of 11-carboxy-TCH in defendant’s blood.
Accordingly, the Feezel holding has no impact on our prior decision in this case. We reaffirm
our prior decision.
We agree with and adopt Justice Corrigan’s statement in the remand order in this case:
THE IMPACT OF FEEZEL HERE
This case well illustrates the potential confusion wrought by the Feezel
decision. Defendant, who was driving with THC in her system, ran a stop sign
and collided with a pick-up truck that had the right of way at the intersection.
Two passengers in defendant’s car—her six-year-old son and her adult friend—
were killed. As a result, a jury convicted defendant of two counts of negligent
homicide and one count of operating a motor vehicle and causing death while
having a controlled chemical substance (marijuana) in her body, MCL 257.625(4)
and (8). Under Derror, defendant’s guilt of this last offense was clear. But
Feezel attempts to distinguish one metabolite of marijuana, 11-carboxy-THC, and
prohibit it from being dubbed a controlled substance. Accordingly, the nature of
defendant’s offense is now unclear. An expert testified that defendant’s urine
contained a sufficient amount of THC—at least 50 nanograms per milliliter—to
test positive for the substance. But it is unclear from the record provided to this
Court which metabolite or metabolites of THC were measured. All metabolites of
THC indicate ingestion of marijuana, and defendant did not contest at trial which
metabolite or metabolites appeared in her system.
Moreover, it appears that revisiting this question—which was
unanticipated by the parties because it was invented by the Feezel Court after
3
Feezel actually presented two issues: (1) whether the trial court abused its discretion by
refusing to admit evidence of the victim’s blood alcohol content, 486 Mich at 191, and (2)
whether 11-carboxy-THC is a derivative of marijuana. 486 Mich at 207. Neither issue is
applicable to this case.
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defendant’s convictions entered—would be unlikely to have any effect on this
case. Not only did defendant fail to contest which metabolite or metabolites were
in her system, but her primary argument on appeal would fail regardless of which
metabolites were present. She argues that the record failed to show that she knew
THC was still in her system, apparently because the record was silent with regard
to whether she knew her driving was measurably impaired by marijuana. But the
prosecutor was not required to prove that she knew she was impaired by a
controlled substance; mere presence of “any amount” of the substance in a
person’s body is necessary for conviction. Derror, 475 Mich at 334.2 The
person’s errant driving, not the person’s impairment due to intoxication, must
have caused the death. Id. at 333. Defendant effectively argues that she decided
to gamble by driving after an indefinite period of time had passed since she
ingested the marijuana but she should not be liable because, having not tested
herself for THC before getting behind the wheel, she did not know with certainty
whether THC remained in her system. This argument is irrelevant under the
statute even in the wake of the Feezel decision. Finally, I note that defendant was
paroled in June 2010 after serving her 2½-year minimum sentence. She is
scheduled to be discharged from parole by December 2011. [Barkley, ___ Mich
at ___; 789 NW2d 441 (Corrigan, J., dissenting), footnote omitted.]
The Supreme Court’s remand order limited this Court’s consideration to defendant’s first
issue on appeal. As Justice Corrigan points out, defendant argued in the first issue that the
evidence was insufficient to establish that she voluntarily decided to drive knowing either that
she had a controlled substance in her body, or that she might be intoxicated. We held, and we
now reaffirm, that the prosecutor was not required to prove that defendant knew she might be
intoxicated. We further concluded, and reaffirm, that the circumstantial evidence at trial was
sufficient to allow the jury to find that a controlled substance (marijuana) was present in
defendant’s body.
Affirmed.
/s/ Deborah A. Servitto
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
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