STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     October 27, 2016
               Plaintiff-Appellant,

v                                                                    No. 330389
                                                                     Oakland Circuit Court
LYMANCE ENGLISH,                                                     LC No. 2014-250982-FH

               Defendant-Appellee.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellant,

v                                                                    No. 330390
                                                                     Oakland Circuit Court
BRANDON RENAR SMITH,                                                 LC No. 2015-255117-FH

               Defendant-Appellee.


Before: WILDER, P.J., and MURPHY and O’CONNELL, JJ.

MURPHY, J. (concurring).

        Because I conclude that the Legislature intended MCL 333.7410(3) to apply where an
offender possesses a controlled substance either inside or outside of a school zone with the intent
to deliver the controlled substance within a school zone, and not where a controlled substance is
possessed inside a school zone but with no intent to deliver the controlled substance within the
school zone, I concur in the lead opinion. Ultimately, in my view, MCL 333.7410(3) is targeted
at drug traffickers who intend to distribute controlled substances within a school zone and not at
traffickers who may simply live in or be traveling through a school zone with controlled
substances present in their home or vehicle. Accordingly, I agree with my colleague’s position
in the lead opinion that we should affirm the circuit courts’ orders dismissing the charges under
MCL 333.7410(3). Because I reach that conclusion partly on the basis of an analysis that
contemplates the legislative history of MCL 333.7410(3), I write separately.

       In general, this Court reviews for an abuse of discretion a trial court’s ruling with respect
to a motion to dismiss criminal charges. People v Adams, 232 Mich. App. 128, 132; 591 NW2d

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44 (1998). We review de novo, however, the construction of a statute. People v Williams, 475
Mich. 245, 250; 716 NW2d 208 (2006). In People v Peltola, 489 Mich. 174, 181; 803 NW2d 140
(2011), our Supreme Court recited the well-established rules of statutory construction:

               Our overriding goal for interpreting a statute is to determine and give
       effect to the Legislature's intent. The most reliable indicator of the Legislature's
       intent is the words in the statute. We interpret those words in light of their
       ordinary meaning and their context within the statute and read them harmoniously
       to give effect to the statute as a whole. Moreover, every word should be given
       meaning, and we should avoid a construction that would render any part of the
       statute surplusage or nugatory. If the statutory language is unambiguous, no
       further judicial construction is required or permitted because we presume the
       Legislature intended the meaning that it plainly expressed. [Citations and
       quotation marks omitted.]

        When a statute is ambiguous, judicial construction is proper in order to ascertain the
statute’s meaning. In re MCI Telecom Complaint, 460 Mich. 396, 411-412; 596 NW2d 164
(1999). In interpreting an ambiguous statute, “we should give effect to the interpretation that
more faithfully advances the legislative purpose behind the statute.” People v Adair, 452 Mich.
473, 479-480; 550 NW2d 505 (1996). A statute is ambiguous where an irreconcilable conflict
exists between statutory provisions or when a statute is equally susceptible to more than one
meaning. People v Hall, __ Mich __, __; __ NW2d __ (2016); slip op at 7.

       MCL 333.7410(3) provides:

                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
       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).[1]

       The issue that arose in these consolidated cases regards whether the statute demands
proof of an intent to deliver a controlled substance “to another person on or within 1,000 feet of
school property” (school zone), or whether it suffices to show an intent to deliver to another
person anywhere, including outside of a school zone, as long as the controlled substance was
possessed within a school zone. Stated otherwise, the issue is whether the school-zone



1
  MCL 333.7401(2)(a)(iv) concerns the manufacture, creation, or delivery of a controlled
substance, or the possession with intent to manufacture, create, or deliver a controlled substance,
“in an amount less than 50 grams,” which offense constitutes “a felony punishable by
imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both.”


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requirement pertains to the possession of controlled substances or to the intended delivery-
destination of controlled substances.

        Our Supreme Court has observed that “[i]t is a general rule of grammar and of statutory
construction that a modifying word or clause is confined solely to the last antecedent . . . .” Sun
Valley Foods Co v Ward, 460 Mich. 230, 237; 596 NW2d 119 (1999); see also Stanton v Battle
Creek, 466 Mich. 611, 616; 647 NW2d 508 (2002) (referring to the “last antecedent” rule of
statutory interpretation). The lead opinion relies on the last antecedent rule to conclude that
MCL 333.7410(3) is unambiguous and that defendants’ construction of the statute is correct. I
find the lead opinion to be fairly persuasive. My hesitancy in fully embracing the lead opinion is
premised on the awareness and appreciation that the last antecedent rule controls “unless
something in the statute requires a different interpretation[,]” Stanton, 466 Mich. at 616, or
“unless a contrary intention appears[,]” Sun Valley, 460 Mich. at 237.

        Subsection (2) of MCL 333.7410 enhances the punishment for delivering a controlled
substance to another person within a school zone, and subsection (4) enhances the punishment
for possessing a controlled substance within a school zone. These provisions are concerned with
the actus reus of the offenses, i.e., the location of the wrongful deeds that comprise the physical
components of the crimes, People v Likine, 492 Mich. 367, 393 n 43; 823 NW2d 50 (2012),
reflecting a legislative intent to punish more severely drug crimes physically committed within a
school zone. Interpreting the words in subsection (3) of MCL 333.7410 in light of their context
in the overall statute and reading them harmoniously with subsections (2) and (4), Peltola, 489
Mich. at 181, there is a plausible argument that subsection (3) should also be interpreted with a
focus on the actus reus of the offense, which is possession of a controlled substance, not the
intended destination of the substance’s delivery. As pointed out by the dissent, federal courts
have construed 21 USC 860(a), which contains language that gives rise to the same interpretation
problems posed by MCL 333.7410(3), applying this very logic, concluding that 21 USC 860(a)
only requires proof of an intent to deliver drugs somewhere, as long as the drugs were possessed
within a school zone. See, e.g., United States v Harris, 313 F3d 1228, 1239 (CA 10, 2002);
United States v Ortiz, 146 F3d 25, 28 (CA 1, 1998); United States v McDonald, 301 US App DC
157, 160; 991 F2d 866 (1993); United States v Rodriguez, 961 F2d 1089, 1092 (CA 3, 1992). In
light of my discussion, I am not unflinchingly confident that the last antecedent rule governs,
considering that the overall language of MCL 333.7410 arguably reveals a legislative intention
that is contrary to the intention deciphered upon application of the last antecedent rule of
statutory construction.

        In my view, analysis under the last antecedent rule should be supplemented with an
examination of the legislative history of MCL 333.7410(3), given that the question regarding
whether § 7410(3) is ambiguous is too close to call with any degree of certainty. The Michigan
Supreme Court “has recognized the benefit of using legislative history when a statute is
ambiguous and construction of [the] ambiguous provision becomes necessary.” In re Certified
Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich. 109, 115 n 5;
659 NW2d 597 (2003). The Court warned “that resort to legislative history of any form is proper
only where a genuine ambiguity exists in the statute[,]” and that “[l]egislative history cannot be
used to create an ambiguity where one does not otherwise exist.” Id.



                                                -3-
       Before the enactment of 1999 PA 188, which was made effective November 24, 1999,
MCL 333.7410(3) enhanced criminal penalties for “possessing with intent to deliver to a minor
who is a student on or within 1,000 feet of school property a controlled substance . . . .” See
1994 PA 174 (emphasis added). Although the phrasing still lacked absolute clarity, the reference
to “a minor who is a student” plainly signaled the Legislature’s intention that an offender had to
have intended delivery within a school zone.2 A minor student and a school zone go hand in
hand. The question becomes whether 1999 PA 188, which replaced the phrase “a minor who is a
student” with “another person,” revealed a legislative intent to expand the scope of the statute to
encompass an intent to deliver anywhere, not just school zones, as long as the possession
occurred within a school zone. The only information that I could locate speaking to the reason
behind the amendment of MCL 333.7410 under 1999 PA 188 is found in Senate Legislative
Analysis, SB 218, July 29, 1999, which provided as follows with respect to the argument
supporting the amendment:

               Although the current law is well-meaning, apparently it is ineffective
       because an element of the offense is delivery to a student who is a minor. A
       successful prosecution requires the testimony of the student. A student, however,
       may be afraid of testifying against a drug dealer, reluctant to admit to receiving
       drugs, or otherwise unwilling to testify. If the enhanced penalties applied to
       delivery to anyone within a drug-free school zone, however, law enforcement
       agencies could place young-looking undercover officers in schools to pose as
       students. By making this change, the bill could have a big impact on combating
       drug-trafficking in and around schools. Reportedly, offenders in Florida are being
       prosecuted under a similar law.

        Accordingly, the 1999 amendment simply reflected a desire not to require the
involvement of a student minor for purposes of a criminal prosecution, as opposed to an effort to
abolish the need to prove an intent to deliver controlled substances within a school zone. I fully
appreciate that “legislative analyses should be accorded very little significance by courts when
construing a statute.” In re Certified Question, 468 Mich. at 115 n 5. But even if one disregards
the Senate analysis quoted above, the amendment of MCL 333.7410 under 1999 PA 188 clearly
concerned only the identity of the person to whom a drug delivery was intended to be made, not
the location of the intended delivery. Given the legislative history of MCL 333.7410(3), I
conclude that the Legislature intended the statutory provision to apply where an offender
possesses a controlled substance either inside or outside of a school zone with the intent to
deliver the controlled substance within a school zone, and not where a controlled substance is
possessed inside a school zone but with no intent to deliver the controlled substance within the
school zone.




2
  Conceivably, the earlier language could be construed as concerning the possession of a
controlled substance within a school zone with an intent to deliver the controlled substance to a
student minor, regardless of the student minor’s whereabouts. This would be a strained and
wholly unreasonable interpretation of the earlier version of MCL 333.7410(3).


                                                -4-
       In sum, while application of the last antecedent rule brings me very close to a conclusive
determination that a prosecutor must establish an intent to deliver a controlled substance within a
school zone for purposes of charges brought under MCL 333.7410(3), any lingering doubts I
may have had on the matter are eliminated on consideration of the statute’s legislative history,
which reinforces the result produced in applying the last antecedent rule of statutory
construction.

       I respectfully concur in the lead opinion.



                                                            /s/ William B. Murphy




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