People v. Genoa

188 Mich. App. 461 (1991) 470 N.W.2d 447

PEOPLE
v.
GENOA

Docket No. 118693.

Michigan Court of Appeals.

Decided April 15, 1991, at 9:30 A.M.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Lawrence S. Talon, Special Assistant Attorney General, and David C. Cannon, Assistant Attorney General, for the people.

Sheldon Halpern, for the defendant.

Before: SHEPHERD, P.J., and GILLIS and CAVANAGH, JJ.

SHEPHERD, P.J.

The prosecution appeals by leave granted a lower court order dismissing a charge against defendant of attempted possession with intent to deliver 650 grams or more of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). We affirm.

The charge against defendant stemmed from a June 6, 1988, transaction in which an undercover agent of the Michigan State Police met with defendant at a hotel and proposed that if defendant gave him $10,000 toward the purchase of a kilogram of cocaine, which the police agent claimed he would then sell, the agent would repay defendant the $10,000, plus $3,500 in profits and a client list. Defendant accepted the proposal and later returned with the $10,000. After defendant left, the police agent turned the money over to the Michigan State Police, and defendant was subsequently arrested.

The district court judge presiding over defendant's preliminary examination dismissed the charge against defendant on the ground that because the police agent never intended to commit the contemplated crime and, indeed, never did commit it, defendant, though he believed he was giving money for an illegal enterprise, financed nothing. Though the prosecution has not provided us with a transcript of the proceedings, an appeal was taken to the circuit court, where the district court's decision was affirmed.

While the prosecution did not necessarily concede it below, it is readily apparent that the only theory by which it could prosecute defendant was that defendant attempted to aid and abet the crime of possession with intent to deliver cocaine. Defendant certainly could not be shown to have even attempted to constructively possess the cocaine himself, in that the evidence simply indicated that defendant was to help finance the proposed venture. And, while Michigan does not distinguish between principals and accessories for purposes of culpability, MCL 767.39; MSA 28.979, certain elements must be established to show someone aided and abetted the commission of a crime. Those elements are: (1) the underlying crime was committed by either the defendant or some other person, (2) the defendant performed acts or gave encouragement which aided and assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time of giving aid or encouragement. People v Acosta, 153 Mich. App. 504, 512; 396 NW2d 463 (1986).

Thus, while the conviction of the principal is not necessary to a conviction of an accessory, the prosecution must prove that the underlying crime was committed by someone, and that the defendant either committed or aided and abetted the commission of that crime. People v Mann, 395 Mich. 472, 478; 236 NW2d 509 (1975). However, in the case at bar, it is clear that the underlying crime was never committed by anyone. The absence of this element made it legally impossible for defendant to have committed any offense.

It is apparent to us that the inability to charge or prosecute defendant results from a gap in legislation. There is currently no provision making it a crime to give money with the intent that it be used by another to purchase and sell drugs, even though that other person does not intend to so utilize the money. There is no statute which focuses on the financier's intent, where it is the other person who solicits, exhorts, or induces the proposed crime. While a defendant could be found guilty of at least common-law solicitation where he utters words urging another to commit a crime such as murder, but that crime is never committed or even attempted, see People v Rehkopf, 422 Mich. 198; 370 NW2d 296 (1985), there is no evidence in the instant matter that it was the defendant who did the soliciting. In the absence of any law, statutory or otherwise, proscribing what transpired in this case, we must find that the lower court did not err in dismissing the charge against defendant.

Affirmed.