Court says Valid Prescription not a Defense to Delivery Charge

Case: People v. Robar

Court: Michigan Court of Appeals ( Published Opinion )

Judges: Gadola, Talbot, and Gleicher

Issues:

Possession with intent to deliver a controlled substance under MCL 333.7401 of the Controlled Substances Act (CSA) (MCL 333.7101 et seq.); Article 7 of the Public Health Code (MCL 333.1101 et seq.); People v. Crawford; Right to a properly instructed jury; People v. Dobek; Jury instructions; People v. Bush; Model jury instructions; MCR 2.512(D)(1) & (2); Model instruction for possession with intent to deliver a controlled substance; M Crim JI 12.3; The possession element; People v. Wolfe; People v. McGhee; People v. Lewis; People v. Acosta; Simple possession; MCL 333.7403(1); People v. Hartuniewicz; Delivery; MCL 333.7303; “Deliver,” “delivery,” & “dispense” defined; MCL 333.7105(1) & (3); “Distribute” defined; MCL 333.7105(5); “Ultimate user” defined; MCL 333.7109(8); “Person” defined; MCL 333.7109(1); MCL 333.1106(4); A necessarily lesser included offense; People v. Mendoza; People v. Jones; Whether a defendant charged with possession with intent to deliver cocaine was entitled to a jury instruction on simple possession; People v. Gridiron(Gridiron I & II); People v. Torres (On Remand); People v. Lucas; People v. Marji; People v. Thomas; People v. Leighty; Evidence of a valid prescription; People v. Pegenau; Burden of proof; MCL 333.7531; People v. Hartwick; Patterson v. New York; People v. Wooster; People v. Bailey; People v. Dempster; People v. Henderson; People v. Mezy

Summary:

The court held that the trial court did not err in concluding that simple possession is a necessarily included lesser offense of possession with intent to deliver a controlled substance. However, it erred by granting defendant’s motion to modify the relevant jury instruction, by finding that having a valid prescription applies to the offense of possession with intent to deliver a controlled substance, and by ruling that he bore only the burden of production. He was charged with possession with intent to deliver a controlled substance. The court agreed with the prosecution that the trial court erred by ruling that he was entitled to the use of the former version of M Crim JI 12.3, because the current version accurately states the law. The court found that “MCL 333.7401(1) makes it a crime to possess a controlled substance, whether lawfully or not, with the intent to deliver that substance unless the person possessing the controlled substance either (1) has obtained a valid license to deliver the substance under MCL 333.7303(1) and (2), or (2) falls within one of the limited exceptions provided by MCL 333.7303(4) and (5).” As such, the amended version of the instructions, “which phrases the relevant inquiry as being whether a defendant was legally authorized to deliver the controlled substance as opposed to being legally authorized to possess the controlled substance, comports with the statutory definition of the offense.” The court next found that “although the trial court did not err by concluding that simple possession is a necessarily included lesser offense of possession with intent to deliver a controlled substance, it erroneously concluded that having a valid prescription, which exempts a defendant from prosecution for simple possession under MCL 333.7403(1), applies with equal force to the offense of possession with intent to deliver a controlled substance under MCL 333.7401(1).” Rather, “to establish the exception under MCL 333.7401(1), a defendant must show that he or she was authorized to deliver the controlled substance possessed by either having a valid license to deliver the substance or by falling within one of the exceptions to the general licensure requirement.” Finally, the court held that the trial court erred by finding that, under Pegenau, “defendant bore only the burden to produce some competent evidence of his authority to possess or deliver the controlled substances at issue, after which the burden of persuasion shifted to the prosecution to prove that defendant lacked such authority beyond a reasonable doubt.” Affirmed in part, reversed in part, and remanded.