People v. Norman , 176 Mich. App. 271 ( 1989 )

176 Mich. App. 271 (1989) 438 N.W.2d 895

PEOPLE
v.
NORMAN

Docket No. 103206.

Michigan Court of Appeals.

Decided April 3, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.

Paul M. Stoychoff, for defendant on appeal.

Before: MURPHY, P.J., and WEAVER and McDONALD, JJ.

WEAVER, J.

Defendant was convicted by a jury of possession of liquor in prison, MCL 800.281; MSA 28.1621. Defendant also pled guilty to being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. After vacating the sentence on defendant's underlying offense of possession of liquor in prison, the trial court sentenced defendant to a prison term of 1 1/2 to 5 years on the habitual offender plea. Defendant appeals as of right. We affirm.

I

Defendant was caught with a sealed bottle of Arrow Peppermint Schnapps, an alcoholic liquor, which he had hidden in the groin area of his trousers upon his return to the Pontiac Correction Center where he resided as a new inmate. Testimony adduced at trial indicated that when defendant returned to the center on August 29, 1986, at approximately 10:30 P.M., he appeared to be drunk. While engaging in a routine pat-down search of defendant, two officers discovered the bottle. During the search but prior to removal of the bottle from his pants, however, defendant denied possessing anything improper.

Following jury selection, defense counsel informed the court that a counselor from the Oakland County Jail, who purportedly was familiar with defendant's alcohol dependency and who had been subpoenaed as a witness, was unavailable to testify due to an illness. Although defense counsel stated that the witness was not a res gestae witness and was not essential to the defense, defendant requested an adjournment to enable the witness to testify. The court denied the request. Before hearing defendant's testimony and after listening to defendant explain that the testimony of the proposed witness was proffered to establish that defendant was diagnosed as an alcoholic, the court concluded that the proffered testimony was unnecessary in light of the parties' stipulation to the bottle's alcoholic contents and to admission of a document indicating defendant's alcoholism.

During opening argument, defense counsel argued that defendant should be acquitted because he was an alcoholic and at the time of the offense was too inebriated to have knowingly and intentionally brought the bottle of alcohol into the center. After hearing the testimony, the trial court, without objection, instructed the jury that specific intent was required to convict defendant of possessing liquor in prison. However, the court did not instruct on intoxication as a defense, and defense counsel made no request. The jury returned a guilty verdict. Defendant subsequently pled guilty to being an habitual offender, fourth offense, and was sentenced.

II

On appeal, defendant argues that the trial court abused its discretion in denying defendant's request for an adjournment, that defense counsel's failure to request an instruction on intoxication as a defense amounted to ineffective assistance of counsel, and that the trial court erred by not instructing the jury, sua sponte, on intoxication as a defense.

Each of defendant's arguments turns on the question of whether possession of liquor in prison, MCL 800.281; MSA 28.1621, is a specific intent crime. We do not believe that it is.

In resolving disputed interpretations of statutory language, it is the function of the reviewing court to effectuate legislative intent. If the language of the statute is clear and its meaning unambiguous, a common-sense reading of the statute will suffice and no interpretation is necessary. Karl v Bryant Air Conditioning Co, 416 Mich. 558, 567; 331 NW2d 456 (1982); State Farm Mutual Automobile Ins Co v Wyant, 154 Mich. App. 745, 749-750; 398 NW2d 517 (1986). We find the language of the statute which proscribes the possession of liquor in prison, MCL 800.281; MSA 28.1621, to be clear and unambiguous. Therefore a common-sense reading of the statute will suffice.

A common-sense reading of this statute does not lead to the conclusion that proof of specific intent is required for a conviction. MCL 800.281(3); MSA 28.1621(3) provides: "Except as provided in section 2 [medical prescription], a person shall not bring any alcoholic liquor, prescription drug, poison, or controlled substance into or onto a correctional facility." The preface to this act states that the purpose of the act is to prohibit or limit access by inmates to certain weapons, alcoholic liquors, and drugs.^[1] Read as a whole, the language of the statute does not support the proposition that the Legislature intended specific intent to be an element of the crime. Conspicuously absent from this language are words such as "knowingly," "wilfully" and "intentionally," which are words traditionally found in specific intent statutes. Moreover, because proof of the crime rests on a substantial overt act and fully consummated offense, a defendant runs little danger of being convicted on slight evidence. See People v Langworthy, 416 Mich. 630, 645; 331 NW2d 171 (1982). Accordingly, there is no need to read into the statute a requirement to prove specific intent. Id.

The decision to grant a motion for trial adjournment rested in the trial court's sound discretion, which decision will not be reversed absent an abuse of discretion resulting in prejudice to the accused. People v Gross, 118 Mich. App. 161, 164; 324 NW2d 557 (1982). Because the parties stipulated to admission of documentary evidence establishing defendant's problem with alcoholism, the proffered testimony regarding defendant's alcoholism and blackouts was merely cumulative. The proffered testimony was also irrelevant, since specific intent was not required for proof of the crime and a showing of defendant's alcoholism would only have been useful to prove inability to form specific intent. Therefore it was not an abuse of discretion for the trial court to deny defendant's motion for adjournment.

There is no merit to the argument that defense counsel rendered ineffective assistance of counsel when failing to request a jury instruction on the defense of intoxication. Because the crime charged was not a specific intent crime, the instruction was unnecessary and would not have affected defendant's chances for acquittal. People v Lyles, 148 Mich. App. 583, 596; 385 NW2d 676 (1986).

Similarly, because the defense of intoxication would not have negated a showing of general intent, the trial court's omission to instruct, sua sponte, on the intoxication defense would not have affected the outcome of defendant's case. Moreover, the trial court's erroneous instruction on specific intent afforded defendant more protection than the statute required. Therefore, any error in the trial court's omission to instruct on intoxication was harmless. MCR 2.613.

Affirmed.

NOTES

[1] The preface reads:

An Act to prohibit or limit the access by prisoners and by employees of correctional facilities to certain weapons and to alcoholic liquor, drugs, medicines, poisons, and controlled substances in, on, or outside of correctional facilities; to prohibit or limit the bringing into or onto certain facilities and real property, and the disposition of, certain weapons and substances to prohibit or limit the selling, giving, or furnishing of certain weapons and substances to prisoners; to prohibit the control or possession of certain weapons and substances by prisoners; and to prescribe penalties. [1909 PA 17, as amended by 1977 PA 164.]