People v. Hardiman

                                                                       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


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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



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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.





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