Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 25, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 118670
CARMAN A. HARDIMAN,
Defendant-Appellee.
________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
At the conclusion of a jury trial in the circuit court,
the defendant was convicted of possessing less than fifty
grams of heroin with intent to deliver, and possession of
marijuana. The Court of Appeals reversed on the ground that
the prosecution introduced insufficient evidence of guilt. We
reverse because, in our judgment, the evidence was sufficient.
I
The Court of Appeals has stated the facts:
On October 22, 1996, police officers executed
a search warrant at an apartment in Pontiac.
Although several people were in the hallway outside
the apartment, no one was in the apartment when the
police entered. Police stopped defendant in the
apartment’s parking lot sometime during the raid.
During the search, officers found in the dining
room wastebasket eight plastic sandwich bags, each
with one corner cut away.[1] Police also searched the
apartment’s northwest bedroom and found in a
nightstand a letter addressed to defendant at that
address, six $10 bags of heroin, a $10 bag of
marijuana, $130 in cash, an ID card, and a loan
payment book belonging to Rodney Crump. Both male
and female clothing were found in the bedroom
closet, including a blue denim dress that contained
forty $10 packs of heroin in the pocket. Four
hundred dollars was found in a sock in a dresser
drawer. Written correspondence and a telephone
calling card belonging to Crump were found in a
television stand. Police also found an
unpostmarked letter addressed to defendant in the
mailbox of the apartment. [Unpublished opinion per
curiam, issued February 6, 2001 (Docket No.
213402).]
On the basis of these proofs, a circuit court jury found
the defendant guilty of possession of less than fifty grams of
heroin with intent to deliver, and possession of marijuana.
MCL 333.7401(2)(a)(iv), 333.7403(2)(d).2
The Court of Appeals reversed, finding the proofs to be
insufficient. From that judgment, the prosecuting attorney
timely applied to this Court for leave to appeal.
1
A police officer testified that, in his experience as
a narcotics officer, he had come across instances in which
baggies were used to package drugs such as marijuana, crack,
powder cocaine, and heroin. The officer explained that the
drugs are placed in the corner of the baggie, that portion of
the baggie is twisted or tied off, the corner is cut or torn
away, and the remaining portion of the baggie is thrown away.
2
The prosecutor’s theory was that defendant and Crump
lived in the apartment together and jointly possessed the
drugs found in the bedroom. Crump was convicted in a separate
trial.
2
II
The standard for reviewing an issue concerning
sufficiency of the evidence has been explained on several
prior occasions. People v Johnson, 460 Mich 720, 722-723; 597
NW2d 73 (1999); People v Wolfe, 440 Mich 508, 513-514; 489
NW2d 478 (1992)3; People v Hampton 407 Mich 354, 366; 285 NW2d
284 (1979). Taking the evidence in the light most favorable
to the prosecution, the question on appeal is whether a
rational trier of fact could find the defendant guilty beyond
a reasonable doubt.
III
As the Court of Appeals correctly observed, Wolfe
provides the governing principles for our inquiry:
A person need not have actual physical
possession of a controlled substance to be guilty
of possessing it. Possession may be either actual
or constructive. Likewise, possession may be found
even when the defendant is not the owner of
recovered narcotics. Moreover, possession may be
joint, with more than one person actually or
constructively possessing a controlled substance.[ 4]
The courts have frequently addressed the
concept of constructive possession and the link
between a defendant and narcotics that must be
shown to establish constructive possession. It is
well established that a person’s presence, by
itself, at a location where drugs are found is
insufficient to prove constructive possession.
Instead, some additional connection between the
3
Amended 441 Mich 1201 (1992).
4
We further observed in Wolfe, supra at 520, that
constructive possession exists where the defendant has the
right to exercise control over the narcotics and has knowledge
of their present.
3
defendant and the contraband must be shown. [440
Mich 519-520 (citations omitted).]
In the present case, the Court of Appeals said that the
evidence did not link the defendant to the drugs. It found no
“direct evidence” that the defendant resided at the apartment
or knew about the contraband. It noted that no fingerprint
evidence placed the defendant near the drugs; also, no
evidence established that the defendant owned the dress in
which the drugs were found.
The Court of Appeals failed to view the evidence in the
light most favorable to the prosecution. Circumstantial
evidence suggested the defendant resided in the apartment;
both the mailbox and nightstand contained mail addressed to
her, and she was found in the rear parking lot. The contents
of the nightstand and closet supported the prosecuting
attorney’s theory that the defendant and Mr. Crump shared the
bedroom.
The dress containing packaged heroin in the closet
permitted a reasonable inference that the defendant possessed
the drugs. No evidence that another woman resided at the
apartment is in the record. The packaging of the heroin in
the dress suggested an intent to deliver.5
5
A police officer testified that the heroin was packaged
in four “bundles” or packs of ten. He explained that heroin
is commonly sold on the street as a “bundle.” No
paraphernalia associated with the use of drugs was found in
this bedroom. Finally, he testified that, in his opinion, on
the basis of all the circumstances, including packaging, the
heroin was possessed for delivery, not for personal use.
4
As detailed above, the evidence that supported the
inference of defendant’s residence at the apartment was
strong: two letters addressed to defendant were found at the
residence—one in the mailbox and one (correspondence from a
local government agency) in a nightstand in the bedroom.
Women’s clothing was found in the bedroom closet.
Additionally, defendant was found by the police in the parking
lot behind the apartment. Viewed in a light most favorable to
the prosecution, this evidence permitted as a reasonable
inference that defendant resided in the apartment.
Regarding the claim that the letter addressed to defendant
might have been found in one nightstand, while the cocaine,
marijuana, and items of identification pertaining to Rodney
Crump might have been found in another nightstand, there is no
evidence that there was more than one nightstand in the
bedroom. The opinion of the Court of Appeals states that the
police “found in a nightstand a letter addressed to defendant
at that address, six $10 bags of heroin, a $10 bag of
Although defendant has challenged the sufficiency of the
proofs generally, she has not specifically challenged the
sufficiency of the evidence regarding intent to deliver.
Intent to deliver can be inferred from “the quantity of
narcotics in a defendant’s possession, from the way in which
those narcotics are packaged, and from other circumstances
surrounding the arrest.” Wolfe, supra at 524. The evidence
in this case, including the quantity and packaging of the
narcotics, along with the discarded baggies with one corner
cut off and the lack of use paraphernalia, is sufficient to
justify a finding that the possessor intended to deliver the
drugs. See People v Konrad, 449 Mich 263, 271, n 4; 536 NW2d
517 (1995).
5
marijuana, $130 in cash, an ID card, and a loan payment book
belonging to Rodney Crump.” Slip op at 1. (Emphasis
supplied.) Viewing the evidence in a light most favorable to
the prosecution, Wolfe, supra at 515, and recognizing that
“possession may be joint,” id. at 520, we must conclude that
a rational trier of fact could have decided that the presence
of the letter in the nightstand supported the reasonable
inference that defendant possessed—even if jointly—the drugs
that were also located in that nightstand.
Next, the prosecution’s decision not to directly
demonstrate that the dress in the closet fit defendant did not
invalidate the reasonable inference that it was her dress.
“Even in a case relying on circumstantial evidence, the
prosecution 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.”
People v Konrad, 449 Mich 263, 273, n 6; 536 NW2d 517 (1995).
The prosecution was not required to prove a negative: that
the dress could not have belonged to some other unknown
female. In light of the clear evidence that defendant resided
in the apartment, and specifically in the northwest bedroom of
the apartment, the presence of women’s clothing in the closet
of that bedroom supported the reasonable inference that such
clothing—including the dress—belonged to defendant.
6
All these attacks on the verdict essentially coalesce
around the proposition that the jury violated the rule
articulated in People v Atley, 392 Mich 298; 220 NW2d 465
(1974), that established that an inference can not be built
upon an inference to establish an element of the offense.
This is indeed the black letter holding of Atley standing
alone. However, virtually from the time of its publication,
Atley was apparently felt to be unworkable and has been the
subject of judicial redefinition by a series of decisions.
Before discussing those cases, however, it is useful to
understand the conceptual problems with forbidding the
building of an inference upon an inference. It appears that
the doctrine forbidding the piling of an inference upon an
inference arose from the intuitive view that circumstantial
evidence was less probative or reliable than direct evidence.
Despite its initial appeal, this view is hard to justify as a
logical proposition and has accordingly been assailed by legal
scholars. One is the distinguished commentator in the field
of evidence, Professor John Henry Wigmore, who dismissed the
doctrine as follows:
It was once suggested that an inference upon
an inference will not be permitted, i.e., that a
fact desired to be used circumstantially must
itself be established by testimonial evidence, and
this suggestion has been repeated by several courts
and sometimes actually has been enforced.
* * *
There is no such orthodox rule; nor can there
be. If there were, hardly a single trial could be
7
adequately prosecuted. . . . In these and
innumerable daily instances we build up inference
upon inference, and yet no court (until in very
modern times) ever thought of forbidding it. All
departments of reasoning, all scientific work,
every day’s life and every day’s trials proceed
upon such data. The judicial utterances that
sanction the fallacious and impracticable
limitation, originally put forward without
authority, must be taken as valid only for the
particular evidentiary facts therein ruled upon.
[1A Wigmore, Evidence (Tiller rev), § 41, pp 1106,
1111.]
Courts attempting to cabin the “fallacious and
impractical limitation” of this theory are many, including the
United States Court of Appeals for the First Circuit, in
Dirring v United States, 328 F2d 512, 515 (CA 1, 1964), which
gave the rule a gloss that left little of the original
doctrine. The court stated:
The defendant cautions us against “piling
inference upon inference.” As interpreted by the
defendant this means that a conviction could rarely
be justified by circumstantial evidence. . . . The
rule is not that an inference, no matter how
reasonable, is to be rejected if it, in turn,
depends upon another reasonable inference; rather
the question is merely whether the total evidence,
including reasonable inferences, when put together
is sufficient to warrant a jury to conclude that
defendant is guilty beyond a reasonable doubt. . .
. If enough pieces of a jigsaw puzzle fit together
the subject may be identified even though some
pieces are lacking.
Echoing this analysis, the Arizona Supreme Court, in
recently abandoning what it referred to as the “obsolescent
inference upon inference rule,” cited Wigmore’s observation
that the rule “was based on the assumption that circumstantial
evidence is intrinsically weaker than testimonial evidence”
8
and then rejected that view, stating that “[i]t is now well
settled, however, in Arizona and elsewhere, in civil and
criminal cases, that direct and circumstantial evidence have
equal probative worth.” Lohse v Faulkner, 176 Ariz 253, 259;
860 P2d 1306 (1992).6
Following an approach similar to the First Circuit’s in
Dirring, our courts have parsed and refined terms so as to
leave little remaining of Atley. In fact, it was criticized,
but not explicitly rejected, by this Court in People v Nowack,
462 Mich 392, 403, n 2; 614 NW2d 78 (2000), after we had
earlier made clear in People v VanderVliet, 444 Mich 52, 61;
508 NW2d 114 (1993), our disillusionment with the rule by
quoting Professor Edward J. Imwinkelreid:
At one time, several American jurisdictions
adhered to the view that an inference cannot be
based upon another inference. That view made it
difficult to introduce evidence which relied on
lengthy chains of inference for its logical
relevance. In particular, that view made it
difficult to introduce uncharged misconduct
evidence which relied on intermediate inferences
for its relevance. Modernly, the courts have
discredited the “no inference on an inference”
rule. The acid test is logical relevance, and a
logically relevant act is admissible even when the
finding of logical relevance requires a long chain
of intervening inferences. [Imwinkelreid, Uncharged
Misconduct Evidence, § 2:18, p 98.]
6
See also Commonwealth v Dostie, 425 Mass 372, 375-376;
681 NE2d 282 (1997)(“In cases where circumstantial evidence is
introduced, we have never required that every inference be
premised on an independently proven fact; rather, we have
permitted, in carefully defined circumstances, a jury to make
an inference based on an inference to come to a conclusion of
guilt or innocence”).
9
The way for VanderVliet and Nowack was made easier by the
handling of the doctrine by our Court of Appeals in People v
Orsie, 83 Mich App 42, 46; 268 NW2d 278 (1978). There the
Court first observed that the Atley Court had admitted that
the doctrine “is a very difficult concept at best,” and then
noted that the doctrine is now “generally discredited” and
held in “ill repute.” Quoting from an Indiana Supreme Court
case, Shutt v State, 233 Ind 169, 174; 117 NE2d 892 (1954),
the Court narrowed the doctrine by confining its applicability
as follows: “an inference cannot be based upon evidence which
is uncertain or speculative or which raises merely a
conjecture or possibility.” Orsie, supra at 47. This, of
course, implicitly allows inferences that are logical and
reasonable, much as the Dirring court discussed. The Orsie
Court concluded that there was “nothing inherently wrong or
erroneous in basing a valid inference upon a valid inference”
and concluded that this was not contrary to Supreme Court
precedent, but rather, was “consistent with the substance of
those decisions.” Id. at 48.
In further clarifying the Orsie reading of Atley, the
Court of Appeals in People v McWilson, 104 Mich App 550, 555;
305 NW2d 536 (1981), held:
[T]he fact-finder is not prevented from making
more than one inference in reaching its decision.
That is, if each inference is independently
supported by established fact, any number of
inferences may be combined to decide the ultimate
question.
10
McWilson, which was, of course, the effort of a Court of
Appeals panel that was unhappy, but nevertheless bound by
Atley, is an improvement because it narrowed Atley. Yet, that
having been said, the Court of Appeals was constrained to stay
within the template of Atley. This Court is not so
constrained; the fact is Atley is flawed and must be
overruled. Atley does not comport with the later-enacted
rules of evidence and, in particular, with MRE 401, which
defines relevant evidence as that having “any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Thus, if evidence is
relevant and admissible, it does not matter that the evidence
gives rise to multiple inferences or that an inference gives
rise to further inferences. The MRE 401 test is, as Professor
Imwinkelreid has articulated, “logical relevance.”
Accordingly, when reviewing sufficiency of the evidence
claims, courts should view all the evidence—whether direct or
circumstantial—in a light most favorable to the prosecution to
determine whether the prosecution sustained its burden. It is
for the trier of fact, not the appellate court, to determine
what inferences may be fairly drawn from the evidence and to
determine the weight to be accorded those inferences. In
compliance with MRE 401, we overrule “the inference upon an
inference” rule of Atley and its progeny.
11
To focus now on inferences, without the evidentiary
distortions occasioned by Atley, we can deduce that the
presence of forty $10 packets of heroin in the dress supported
the reasonable inference that whoever owned the dress had
knowledge of the presence of that substantial quantity of
heroin in the pocket. The inference that the dress belonged
to whoever resided in the bedroom was supported by the
recognition that, ordinarily, clothes in a bedroom closet
belong to the occupants of the bedroom. Defendant’s identity
as the female occupant of the bedroom could be inferred by the
letter addressed to her that was found in the nightstand, an
inference that was also supported by the letter in the mailbox
and defendant’s apprehension in the adjoining parking lot.
Therefore, given the reasonable inferences outlined above,
each of which are supported by established facts, it was an
entirely reasonable conclusion that the dress belonged to
defendant and that she knew there were forty $10 packets of
heroin in the pocket.
In this case, all the evidence, direct and
circumstantial,7 as well as all reasonable inferences that may
be drawn therefrom, when viewed in a light most favorable to
the prosecution, Wolfe, supra, is sufficient to support
defendant’s conviction beyond a reasonable doubt.
7
As we emphasized in Wolfe, supra at 526,
“circumstantial evidence is oftentimes stronger and more
satisfactory than direct evidence.” (Citation omitted.)
12
Despite acknowledging the requirement that we view the
evidence in a light most favorable to the prosecution,
Justices Kelly and Cavanagh, in our view, prefer considering
the evidentiary inferences from defendant’s perspective.
Justice Kelly acknowledges that “the jury reasonably
could have stretched and inferred that defendant resided in
the apartment.” Post at 4. This is an admission that should
end the inquiry. Yet she continues by offering various
alternative hypotheses, favorable to defendant, that could be
drawn from the evidence. She suggests that sometimes people
send mail to addresses other than where they live and then
opines that defendant could have come to the parking lot only
to pick up her mail. Id. While such alternate explanations
are possible, they are not the proper test of the proofs. The
reason is that the prosecution is only required to produce
sufficient evidence to establish guilt; it is not required to
negate every reasonable theory consistent with a defendant’s
innocence. Konrad, supra at 273, n 6 (opinion by Brickley,
C.J.).
Justice Cavanagh, while willing to overrule Atley and
affirm a conviction built on inferences derived from
circumstantial e vidence, argues that more
evidence—fingerprints and the admission of the actual dress
into evidence—would have made the case easier for the jury.
No one would contest this point, nor would they likely contest
that in every case hindsight can always conjure up additional
13
investigative actions that could have been beneficially
undertaken. Yet these actions would still only constitute
additional circumstantial proof of defendant’s residency in
the apartment and her ownership of the dress. If the
prosecution produced sufficient evidence—and we have concluded
that it did—that is all that is required. Konrad, supra.
Once having found that the jury could reasonably draw the
inferences that it did, and that the evidence, considered with
those inferences, was sufficient to establish defendant’s
guilt beyond a reasonable doubt, the review of the appellate
court is complete.8 Such alternative musings as are offered
by the dissents are not the stuff of appellate criminal
review. Jurors determine the weight of the evidence; we do
not. As we said in Wolfe, supra at 514-515:
[A]ppellate courts are not juries, and even
when reviewing the sufficiency of the evidence,
they must not interfere with the jury’s role:
[An appellate court] must remember that the
jury is the sole judge of the facts. It is the
function of the jury alone to listen to testimony,
weigh the evidence and decide the questions of
fact. . . . Juries, not appellate courts, see and
8
The assertion by the dissent that the majority does not
agree that the evidence must meet the sufficiency requirement
of Jackson v Virginia, 443 US 307; 99 S Ct 2781; 61 L Ed 2d
560 (1979)—and Hampton, Wolfe, and Johnson, supra—is
incorrect. We have plainly stated that the Jackson/Hampton
standard controls the determination whether the evidence was
sufficient, and we have applied the Jackson/Hampton standard
in our analysis. Our difference with the dissent is that we
have concluded, applying that standard to the facts of this
case, the inferences that could be drawn from the evidence by
the jury are reasonable and the circumstantial evidence of
defendant’s guilt is therefore sufficient.
14
hear witnesses and are in a much better position to
decide the weight and credibility to be given to
their testimony. [Citation omitted.]
In summary, then, it is simply not the task of an appellate
court to adopt inferences that the jury has spurned.
Thus, the evidence, when viewed as a whole and in a light
favorable to the prosecution, was sufficient to support a
finding that the defendant was guilty beyond a reasonable
doubt. We therefore reverse the judgment of the Court of
Appeals and reinstate the judgment of the circuit court. MCR
7.302(F)(1).
CORRIGAN , C.J., and WEAVER , YOUNG , and MARKMAN , JJ., concurred
with TAYLOR , J.
15
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 118670
CARMAN A. HARDIMAN,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree that the “inference on an inference” rule,
articulated in People v Atley, 392 Mich 298; 220 NW2d 465
(1974), is internally inconsistent and should, therefore, be
rejected, in spite of its deceptive utility as a bright-line
safeguard against the admission of evidence lacking sufficient
relevance. The concerns over tenuous evidentiary links, that
resulted in the adoption of the rule in Atley, have eased with
the enactment of the rules of evidence. Evidence–direct or
circumstantial–may only be admitted when relevant and not more
prejudicial than probative. MRE 401, 403. In addition, where
the evidence fails to establish guilt beyond a reasonable
doubt, a court must order a directed verdict. People v
Patrella, 424 Mich 221, 275; 380 NW2d 11 (1985) (“While the
trier of fact may draw reasonable inferences from facts of
record, it may not indulge in inferences wholly unsupported by
any evidence, based only upon assumption”). These evidentiary
tests more adequately protect the harms Atley attempted to
prevent. Therefore, I concur with the majority’s rejection of
Atley.
However, I dissent from the Court’s conclusion that the
evidence was “sufficient to justify a rational trier of fact
in finding guilt beyond a reasonable doubt.” People v Wolfe,
440 Mich 508, 513-514; 489 NW2d 478 (1992). Viewing the
evidence in the light most favorable to the prosecution, a
rational juror could infer the existence of the facts
necessary to establish the elements of the crimes with which
defendant was charged. However, I disagree that those facts
were proven so that a rational juror could find their
existence beyond a reasonable doubt. Id. The officers tested
nothing in the apartment for fingerprints. Nor did they seize
the dress in which the heroin was found; only its photo was
admitted in evidence. No evidence linked the dress to
defendant, other than the circumstantial evidence of residence
on the basis of the mail found at the apartment. Clearly, the
evidence did not prove beyond a reasonable doubt that
defendant knew of the presence of the controlled substances.
In an attempt to rebuff its dissenting colleagues, the
majority implies that the discovery of reasonable inferences
2
supporting the elements of a crime charged will end the
inquiry demanded by due process guarantees. However, this
ignores the Supreme Court mandate in Jackson v Virginia, 443
US 307; 99 S Ct 2781; 61 L Ed 2d 560 (1979), that appellate
courts review the evidence to determine if a rational trier of
fact could find guilt beyond a reasonable doubt. See also
Wolfe; People v Hampton, 407 Mich 354, 368; 285 NW2d 284
(1979) (adopting Jackson and holding that a trial judge must
review a directed verdict motion to ensure that a rational
trier of fact could find guilt beyond a reasonable doubt).
In adopting this standard, the Supreme Court expressly
considered and rejected the notion that the existence of any
evidence to support a conviction would satisfy due process
requirements. Id. at 320. An appellate court has “a duty to
assess the historic facts when it is called upon to apply a
constitutional standard to a conviction . . . .” Id. at 318.
A “mere modicum” of evidence is insufficient. Id. at 320.
Rather, reviewing judges must do more than simply identify an
inference; the evidence admitted must be sufficient so that a
rational trier of fact could find the elements of the crime
established beyond a reasonable doubt. In particular, where
an element of a crime is supported only by an inference
establishing a mere modicum of proof–even if the inference
itself is “reasonable”–a conviction cannot stand.
Thoughtful judges in the courts below will continue to
3
respect the mandate to which they are bound, affirming
convictions only when a rational trier of fact could find that
the evidence establishes guilt beyond a reasonable doubt.
Because the evidence does not establish guilt beyond a
reasonable doubt, I would affirm the result of the Court of
Appeals. To hold otherwise would ignore the second step in
the inquiry articulated in Wolfe and Jackson, and the
judiciary’s duty to ensure that all elements of a crime be
proven beyond a reasonable doubt.
4
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 118670
CARMAN A. HARDIMAN,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
The Court of Appeals found insufficient evidence to
support defendant's convictions of possessing marijuana and
possessing heroin with intent to deliver. The majority on
this Court has reversed that ruling, concluding that the panel
failed to view the evidence in the light most favorable to the
prosecution.
The majority's decision is plausible only through an
exaggeration of the strength of the prosecutor's evidence and
the allowance of stacked inferences. Because I believe that
the Court of Appeals correctly found the evidence
insufficient, I respectfully dissent.
I also disagree with overruling the "no inference on an
inference" rule from People v Atley, 392 Mich 298; 220 NW2d
465 (1974). In erasing that twenty-eight-year-old precedent,
the majority has increased the likelihood that future criminal
convictions will be based more on speculation than on facts.
I would leave Atley intact.
I
The crimes of possession of marijuana and possession with
intent to deliver less than fifty grams of heroin both require
proof of possession. See MCL 333.7403; People v Wolfe, 440
Mich 508, 516-517; 489 NW2d 478 (1992). The key question in
this case is whether, when the evidence is viewed most
favorably to it, the prosecution carried its burden of showing
knowing possession beyond a reasonable doubt.
In establishing the element of possession,
"[t]he ultimate question is whether, viewing the
evidence in a light most favorable to the
government, the evidence establishes a sufficient
connection between the defendant and the contraband
to support the inference that the defendant
exercised a dominion and control over the
substance." [Id. at 521, quoting United States v
Disla, 805 F2d 1340, 1350 (CA 9, 1986).]
Reasonable inferences can be made from the facts presented,
but the trier of fact cannot "indulge in inferences wholly
unsupported by any evidence, based only upon assumption."
People v Petrella, 424 Mich 221, 275; 380 NW2d 11 (1985).
The prosecution's theory in this case was that defendant
2
constructively possessed the marijuana and heroin that police
located in an apartment. Constructive possession requires
evidence showing that the accused knew about the drugs and
could exercise control over them. The fact is that defendant
was never found to be present in the apartment in question.
She was in a nearby parking lot. Showing that she was in the
vicinity was not sufficient to prove that she constructively
possessed the drugs. Wolfe, supra at 520.
II
It is without dispute in this case that no evidence
directly linked defendant to the drugs. There was no claim
that her fingerprints were on the container of marijuana
located in a nightstand in a bedroom. Heroin was found in the
pocket of someone's dress in a closet. Cross-examination
showed that the police did not attempt to size the dress or in
any other way identify it as belonging to defendant. The
record did not even show how many people lived in the
apartment.
The evidence that was alleged to connect defendant to the
drugs, all circumstantial, consisted of (1) one piece of mail
addressed to her and found in the mailbox and one piece found
in a drawer, which drawer may or may not have contained
marijuana, (2) defendant's presence in a nearby parking lot,
and (3) an unidentified dress in a bedroom closet with heroin
3
in the pocket. The majority concludes that the sum of this
evidence permits the inferences that defendant lived in the
apartment and possessed the marijuana and heroin found there.
I disagree.
From the evidence of the letters and defendant's presence
in the parking lot, the jury reasonably could have stretched
and inferred that defendant resided in the apartment. This is
inference number one. Even viewed in a light most favorable
to the prosecution, it is weak. People sometimes have mail
sent to an address where they do not live. Among other
possibilities, defendant could have come to the parking lot to
pick up her mail. The fact that it is such a weak inference
takes on great significance when one realizes how much depends
on it.
The jury could have inferred that defendant had control
over the drawer containing marijuana only on the basis of the
inference that she lived in the apartment. From that it could
have inferred that she knew of the marijuana and exercised
control over it. On the basis of the inference that she lived
in the apartment, it could have inferred that the dress in the
closet belonged to her. From that it could have inferred that
she knew of and possessed the heroin in the dress pocket.
These are inferences two, three, four, and five.
But the jury could not have reached the second and fourth
4
inferences without having the first on which to base them. It
could not have reached the third and fifth inferences without
having the second and fourth on which to base them. Thus, the
finding of guilt must be made on the basis of stacked
inferences. The evidence fails to sustain the inferences
needed to find defendant guilty.
III
In this case, the great value of the Atley "no inference
on an inference" rule is that its application leaves no
lingering doubt that the evidence will not support the
verdict. The rule has received some criticism in case law and
from legal scholars, but the majority's overruling of it today
is unwarranted and dangerous.
The rule provides a needed scale on which to weigh
inferences. It forces an assessment of whether they are both
reasonable and supported by facts introduced in evidence. It
deters speculation based on unfounded inferences, making it
less likely that a weak case will succeed. In so doing, it
reinforces a fundamental principle of criminal law, that guilt
must be established beyond a reasonable doubt.
Criticism of the rule should be weighed against the fact
that it serves a useful purpose and has done so for decades.1
1
The "no inference on an inference" rule was initially
adopted by this Court eighty-four years ago in the context of
(continued...)
5
The reasoning of the majority in discarding it is
unpersuasive.
IV
I agree with Justice Cavanagh's position that the
evidence was not sufficient to prove defendant's guilt beyond
a reasonable doubt. Evidentiary rule MRE 401 defines relevant
evidence. The rule does not state that all inferences are
permissible. Nor does Michigan case law permit such a
conclusion. Rather, inferences must be reasonable. See
Petrella, supra. The inferences that must be drawn here
respecting defendant's knowledge of and control over the drugs
found in the apartment are not reasonable.
V
No matter how favorably to the prosecution one views the
evidence here, a rational factfinder could not conclude beyond
a reasonable doubt that defendant constructively possessed the
drugs. Application of Atley's "no inference on an inference"
1
(...continued)
civil matters. See, e.g., Ginsberg v Burroughs Adding Machine
Co, 204 Mich 130; 170 NW 15 (1918). Forty-seven years ago, it
was applied to criminal law in People v Petro, 342 Mich 299;
70 NW2d 69 (1955).
Since then, numerous cases have relied on the rule in
criminal appeals. See, e.g., People v Blume, 443 Mich 476,
485-486, n 14; 505 NW2d 843 (1993); People v McGregor, 45 Mich
App 397; 206 NW2d 218 (1973); People v Smith, 21 Mich App 717;
176 NW2d 430 (1970); People v Eaves, 4 Mich App 457; 145 NW2d
260 (1966).
6
rule confirms it. The evidence is too weak to support the
convictions. Moreover, the majority's decision to overrule
Atley impedes the proper administration of justice. It
removes a safeguard designed and used for decades to prevent
a finding of guilt based on speculation, alone.
I would affirm the Court of Appeals conclusion that the
evidence is insufficient to support the convictions of
possession and possession with intent to deliver. In
addition, I would reaffirm the significance and viability of
the "no inference on an inference" rule established in Atley.
7