People of Michigan v. Kellie Nichole Stock

Order Michigan Supreme Court
Lansing, Michigan
July 9, 2021 Bridget M. McCormack,
Chief Justice
160968 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 160968
COA: 340541
Wayne CC: 17-003509-FC
KELLIE NICHOLE STOCK,
Defendant-Appellant.
_________________________________________/
On May 5, 2021, the Court heard oral argument on the application for leave to
appeal the December 26, 2019 judgment of the Court of Appeals. On order of the Court,
the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to
appeal, we REVERSE that part of the judgment of the Court of Appeals holding that the
defendant’s convictions for operating a motor vehicle while intoxicated causing death
and operating a motor vehicle while intoxicated causing a serious impairment of a body
function were supported by sufficient evidence on the record. The prosecution failed to
present evidence that the presence of cocaine metabolites in the defendant’s urine
supports a reasonable inference that the defendant had cocaine in her body. MCL
257.625(8) states, in relevant part:
A person, whether licensed or not, shall not operate a vehicle on a
highway or other place open to the general public or generally accessible to
motor vehicles . . . if the person has in [their] body any amount of a
controlled substance listed in schedule 1 under section 7212 of the public
health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that
section, or of a controlled substance described in section 7214(a)(iv) of the
public health code, 1978 PA 368, MCL 333.7214.
As noted by dissenting Judge SHAPIRO, the prosecution bears the burden of proof with
regard to each element of an offense, including whether a controlled substance was in a
defendant’s body. In People v Feezel, 486 Mich 184 (2010), this Court held that 11-
carboxy-THC, a metabolite of the main psychoactive chemical in marijuana, is not a
Schedule 1 controlled substance for purposes of MCL 257.625(8). Therefore a person
cannot be prosecuted under the statute for operating a motor vehicle with “any amount”
of the metabolite in their system. In this case, the prosecution presented evidence—the
results of a toxicology screen—indicating the presence of an unidentified metabolite of
cocaine in the defendant’s urine. While the prosecution contends that Feezel can be
distinguished, the prosecution argues for an interpretation of “controlled substance” that
would include any metabolite of cocaine—the same argument this Court rejected in
2
Feezel when we explained that 11-carboxy-THC is not a Schedule 1 controlled substance.
Id. at 210-211 (opinion by M. F. CAVANAGH, J.); id. at 217 (opinion by WEAVER, J.).
Here, the prosecution failed to identify the metabolite or demonstrate that the metabolite
itself was a “controlled substance” for purposes of MCL 257.625(8). Further, the
prosecution’s evidence showing the mere presence of an unidentified metabolite, but
nothing more, was not sufficient to prove that the defendant had any amount of cocaine in
her body at the time of the motor vehicle collision. We therefore REVERSE the
defendant’s sentences for operating a motor vehicle while intoxicated causing death and
operating a motor vehicle while intoxicated causing a serious impairment of a body
function, and we REMAND this case to the Wayne Circuit Court for further proceedings
not inconsistent with this order. On remand, the circuit court shall determine whether
resentencing on the defendant’s remaining convictions is required where the Court of
Appeals has reversed the defendant’s convictions of operating a motor vehicle while
license suspended causing death and operating a motor vehicle while license suspended
causing serious impairment of a body function and where this Court has reversed the
defendant’s sentences for operating a motor vehicle while intoxicated causing death and
operating a motor vehicle while intoxicated causing a serious impairment of a body
function. In all other respects, the application for leave to appeal is DENIED, because we
are not persuaded that the remaining questions presented should be reviewed by this
Court.
We do not retain jurisdiction.
ZAHRA, J. (dissenting).
I respectfully dissent from this Court’s order reversing the decision of the Court of
Appeals that there was sufficient evidence to convict defendant of operating a motor
vehicle while intoxicated (OWI) causing death1 and OWI causing a serious impairment of
a body function2 based on defendant’s positive test for cocaine metabolites after her
motor vehicle accident, as well as her behavior leading up to the accident.
“Challenges to the sufficiency of the evidence are reviewed de novo.”3 “In
evaluating defendant’s claim regarding the sufficiency of the evidence, this Court reviews
the evidence in a light most favorable to the prosecutor to determine whether any trier of
fact could find the essential elements of the crime were proven beyond a reasonable
doubt.”4 All conflicts in the evidence are resolved in favor of the prosecution,5 and
1
MCL 257.625(4) and (8).
2
MCL 257.625(5) and (8).
3
People v Wang, 505 Mich 239, 251 (2020).
4
Id. (quotation marks and citation omitted).
5
People v Wolfe, 440 Mich 508, 515 (1992).
3
circumstantial evidence and reasonable inferences drawn therefrom can constitute
satisfactory proof of the crime.6 “Circumstantial evidence is evidence of a fact, or a
chain of facts or circumstances, that, by indirection or inference, carries conviction to the
mind and logically or reasonably establishes the fact to be proved.”7
MCL 257.625(8)8 prohibits the operation of a vehicle on a highway if a “person
has in his or her body any amount of a controlled substance listed in schedule 1 under
[MCL 333.7212] . . . or of a controlled substance described in [MCL 333.7214(a)(iv)].”9
MCL 333.7214(a)(iv) includes, as a Schedule 2 controlled substance:
Coca leaves and any salt, compound, derivative, or preparation
thereof which is chemically equivalent to or identical with any of these
substances, except that the substances do not include decocainized coca
leaves or extraction of coca leaves which extractions do not contain cocaine
or ecgonine. The substances include cocaine, its salts, stereoisomers, and
salts of stereoisomers when the existence of the salts, stereoisomers, and
salts of stereoisomers is possible within the specific chemical designation.
Whether the presence of a cocaine metabolite in one’s body is sufficient to sustain
a conviction under MCL 257.625(8) first turns on whether a cocaine metabolite is a
Schedule 2 drug under MCL 333.7214(a)(iv). Although this Court has not yet delved into
the science of cocaine metabolites, it has done so with respect to the specific marijuana
metabolite 11-carboxy-tetrahydrocannabinol (11-carboxy-THC), which is produced by
the body naturally when it metabolizes THC—the psychoactive ingredient of marijuana.
In People v Feezel, this Court held that 11-carboxy-THC is not a Schedule 1 controlled
substance under MCL 333.7212 of the Public Health Code, MCL 333.1101 et seq., and
thus “a person cannot be prosecuted under MCL 257.625(8) for operating a motor vehicle
with any amount of 11-carboxy-THC in his or her system.”10 In rendering its decision,
the Feezel Court overruled its prior decision in People v Derror, which came to the
opposite conclusion just four years earlier.11
6
People v Nowack, 462 Mich 392, 400 (2000).
7
Wang, 505 Mich at 251 (quotation marks, citations, and alterations omitted).
8
OWI causing death and OWI causing serious impairment of a body function, which
have the same elements except for the injury sustained, permit a conviction if defendant
was operating her motor vehicle while she was intoxicated in violation of MCL
257.625(1), (3), or (8). See MCL 257.625(4) and (5); People v Schaefer, 473 Mich 418,
434 (2005) (setting forth the elements of OWI causing death). The parties and the Court
of Appeals focused their analyses on MCL 257.625(8).
9
Emphasis added.
10
People v Feezel, 486 Mich 184, 205 (2010).
11
People v Derror, 475 Mich 316 (2006), overruled by Feezel, 486 Mich 184. Derror
4
Although I would not extend Feezel’s narrow holding here,12 even applying Feezel
to cocaine metabolites in general does not automatically resolve this case. This Court’s
focused on the term “derivative” in MCL 333.7212 to conclude that 11-carboxy-THC,
which “has an identical chemical structure to THC except for the eleventh carbon atom,”
was a Schedule 1 controlled substance. Id. at 327. Feezel, on the other hand, relied on
expert testimony that 11-carboxy-THC had no known pharmacological effect and lacked
other characteristics of controlled substances to conclude that neither federal law nor the
Public Health Code classified 11-carboxy-THC as a Schedule 1 controlled substance
under MCL 333.7212. Feezel, 486 Mich at 207-212.
12
Not only do we lack the sort of expert testimony presented in Feezel and Derror, we
are also not reviewing a specific metabolite of cocaine. Absent record evidence or expert
testimony establishing the specific metabolite at issue, I would not conclusively extend
Feezel’s narrow holding regarding 11-carboxy-THC, a specific marijuana metabolite, to
virtually all drug metabolites in general. See People v Barkley, 488 Mich 901, 902
(2010) (CORRIGAN, J., dissenting) (noting that “it is unclear from the record provided to
this Court which metabolite or metabolites of THC were measured,” that “[a]ll
metabolites of THC indicate ingestion of marijuana, and [that] defendant did not contest
at trial which metabolite or metabolites appeared in her system”).
Further, it is important to note that, in between the time Derror and Feezel were
decided, the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., was
enacted into law “to allow a limited class of individuals the medical use of
marijuana . . . .” People v Kolanek, 491 Mich 382, 393 (2012). In deciding to overrule
Derror, the Feezel Court recognized the MMMA’s seismic shift in the law and its
profound impact on motorists who operate their vehicles long after the impairing effects
of medical marijuana have worn off. See Feezel, 486 Mich at 215 n 16 (stating that
Derror defies practical workability in part because, “under the Derror holding, those
qualified individuals who lawfully use marijuana in accordance with the [MMMA] are
prohibited from driving for an undetermined length of time given the potential of 11-
carboxy-THC to remain in a person’s system long after the person has consumed
marijuana and is no longer impaired”). While Michigan has since legalized marijuana for
medicinal and recreational purposes, cocaine remains illegal. There also appears to be a
much “closer biological link between impairment and the presence of cocaine
metabolites” than with marijuana metabolites like 11-carboxy-THC. Commonwealth v
DiPanfilo, 993 A2d 1262, 1267 (Pa Super, 2010). While actual intoxication is not
necessary to prove OWI under MCL 257.625(8), I would not ignore the tenuous link
between impairment and 11-carboxy-THC that played a crucial role in the Feezel Court’s
decision to overrule Derror.
Accordingly, absent similar record evidence and expert testimony that this Court
possessed in Feezel and Derror regarding the specific marijuana metabolite at issue, I
would not conclusively extend Feezel beyond its own parameters to a whole new class of
illicit substances as the Court does here.
5
conclusion that “the prosecution’s evidence showing the mere presence of an unidentified
metabolite . . . was not sufficient to prove that the defendant had any amount of cocaine
in her body at the time of the motor vehicle collision” ignores the rather elementary rule
that “circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.”13 As the Court of Appeals
explained below, the presence of cocaine metabolites in defendant’s urine is “probative
of the presence of cocaine” and may still be used as circumstantial and inferential
evidence that defendant had cocaine in her body at the time of the accident.14 Indeed,
even the dissenters in Derror, who later formed the majority in Feezel, recognized that
the presence of “11-carboxy-THC may be used as circumstantial evidence of a statutory
violation[.]”15 The presence of cocaine metabolites in a person’s body is even stronger
circumstantial evidence of a statutory violation given the closer biological link between
its presence and impairment. Because a cocaine metabolite only ever appears in a
person’s body if the person has ingested cocaine, the presence of cocaine metabolites
necessarily establishes that defendant ingested cocaine at some prior point in time. And
given that defendant was taken to the hospital immediately after her accident, it is
unlikely that she ingested cocaine in the roughly four and a half hours between the
accident and her urine test. It was therefore reasonable for the jury to infer that defendant
had ingested cocaine prior to her motor vehicle accident.
Further, defendant’s behavior leading up to the accident is compelling
circumstantial evidence that she operated her vehicle with cocaine in her body. An
undercover police officer had observed defendant drive the wrong way down a one-way
street and attempted to have nearby officers stop defendant’s vehicle on that basis.
Despite the police activating their vehicle’s emergency lights and sirens, defendant
refused to pull her vehicle over. Instead, defendant initiated a high-speed police chase, in
which she sped down Woodward Avenue in rush-hour traffic, ran a red light, and crashed
into another vehicle. The accident resulted in the death of the driver of the other vehicle
and left the passenger of defendant’s vehicle, Classie Butler, seriously injured. At trial,
Butler testified that when defendant observed what she believed to be an undercover
police car behind her, she started speeding. Butler insisted that she be let out of the
vehicle because she was scared by how fast defendant was driving. Defendant ignored
Butler’s complaints and sped even faster, stating that she had violated her parole and that
she did not want to get into trouble. Defendant’s reckless driving and her refusal to
surrender despite commands from law enforcement and pleas from the passenger of her
vehicle, coupled with her positive test for cocaine metabolites, provided sufficient
13
Nowack, 462 Mich at 400 (quotation marks and citation omitted).
14
People v Stock, unpublished per curiam opinion of the Court of Appeals, issued
December 26, 2019 (Docket No. 340541), p 5; see also id. at 6, 14.
15
Derror, 475 Mich at 361 (CAVANAGH, J., dissenting).
6
circumstantial and inferential evidence for a rational jury to conclude that defendant had
operated her vehicle with any amount of cocaine in her body and thus supported her OWI
convictions.16 Accordingly, this Court’s conclusion that the prosecution failed to meet its
burden of proof with respect to that element of the offense is simply incorrect.
Defendant cites caselaw discussing positive urine tests for both cocaine and
cocaine metabolites,17 as well as scientific literature suggesting that cocaine metabolites
can pool in one’s bladder and remain there for multiple days. The inferences defendant
asks this Court to draw, then, are that because defendant’s urine test revealed only the
presence of cocaine metabolites, she (1) must have ingested cocaine well before the
accident, and (2) must not have had cocaine in her body at the time of the accident. I
disagree. The prosecution, “[e]ven in a case relying on circumstantial evidence, . . . need
not negate every reasonable theory consistent with the defendant’s innocence, but need
merely introduce evidence sufficient to convince a reasonable jury in the face of
whatever contradictory evidence the defendant may provide.”18 Viewing the evidence in
a light most favorable to the prosecution and resolving all conflicts in the evidence in its
favor—as we must do—the Court of Appeals did not err by concluding that there was
sufficient evidence to support defendant’s OWI convictions under MCL 257.625(8), and
therefore under MCL 257.625(4) and (5).
Because I discern no error in the Court of Appeals’ decision affirming defendant’s
OWI convictions, I respectfully dissent.
VIVIANO, J., joins the statement of ZAHRA, J.
16
Although these facts may also support the conclusion that defendant was intoxicated at
the time she operated her vehicle, actual intoxication is not necessary to prove OWI
under MCL 257.625(8).
17
See People v Moore, 189 Mich App 315, 317 (1991).
18
People v Hardiman, 466 Mich 417, 423-424 (2002) (quotation marks and citation
omitted).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 9, 2021
t0706
Clerk