                                                                                      Michigan Supreme Court
                                                                                            Lansing, Michigan




Syllabus
                                                             Chief Justice:               Justices:
                                                              Bridget M. McCormack        Stephen J. Markman
                                                                                          Brian K. Zahra
                                                             Chief Justice Pro Tem:
                                                                                          Richard H. Bernstein
                                                              David F. Viviano            Elizabeth T. Clement
                                                                                          Megan K. Cavanagh

This syllabus constitutes no part of the opinion of the Court but has been                Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                  Kathryn L. Loomis



                                          PEOPLE v McBURROWS

             Docket No. 157200. Argued on application for leave to appeal April 11, 2019. Decided
      July 15, 2019.

              Romon B. McBurrows was charged in the Monroe Circuit Court with one count of delivery
      of a controlled substance causing death, MCL 750.317a, in connection with the death of Nicholas
      Abraham. Abraham, a resident of Monroe County, had driven an acquaintance to a house in
      Wayne County where the acquaintance bought heroin from defendant. Abraham and the
      acquaintance used some of the heroin in a nearby parking lot and then returned to their homes.
      Abraham was found unresponsive the next morning and was pronounced dead later that day. An
      autopsy concluded that Abraham had died from an overdose of fentanyl, which is sometimes mixed
      with heroin. Defendant filed a motion disputing Monroe County as a proper venue, and the trial
      court, Daniel White, J., denied the motion. Defendant then applied for leave to appeal on an
      interlocutory basis in the Court of Appeals, which granted leave and stayed the trial court
      proceedings pending the appeal. The Court of Appeals, TALBOT, C.J., and BORRELLO and
      RIORDAN, JJ., reversed, holding that venue was proper in Wayne County, where defendant
      allegedly delivered the heroin, and that venue was not proper in Monroe County under either
      MCL 762.5 or MCL 762.8. People v McBurrows, 322 Mich App 404 (2017). The prosecution
      appealed in the Supreme Court, which ordered and heard oral argument on whether to grant the
      application or take other action. 501 Mich 1073 (2018).

             In a unanimous opinion by Justice CLEMENT, the Supreme Court, in lieu of granting leave
      to appeal, held:

              In a prosecution for delivery of a controlled substance causing death, venue is not properly
      laid in a county if the death, but not the delivery, occurred in that county.

              1. A criminal trial should be by a jury of the county or city where the offense was
      committed. The parameters of this general rule are not codified in Michigan. While MCL 762.1
      provides that the courts of this state that have jurisdiction and powers over criminal causes have
      the “jurisdiction and powers as are now conferred upon them by law,” this language is too general
      to provide meaningful guidance. Instead, what is codified are certain exceptions to or expansions
      of the general rule, which allow venue in locations besides that provided for in the general rule.
      Thus, identifying a proper venue is a two-step process: first, the proper venue under the general
      rule must be identified; second, it must be determined whether a statutory exception permits
departure from the general rule. Although the general venue rule has at times been stated in
permissive terms, in the absence of an applicable statutory exception, that the trial be held in the
county or city where the offense was committed is a mandatory aspect of criminal venue in
Michigan that derives from the continuing constitutional guarantee of the preexisting common-
law right to trial by jury.

        2. Under federal law, which constitutionally requires that federal criminal trials be held in
the state where the crimes were committed, the location of the crime is determined from the nature
of the crime alleged and the location of the act or acts constituting it. One method for making this
determination is the “verb test,” in which identifying the essential verb in the statute creating a
crime is the critical inquiry in identifying the proper venue for a federal prosecution. However,
the Supreme Court has stated that this test cannot be applied rigidly, to the exclusion of other
relevant statutory language, because the proper inquiry is into the nature of the offense. In this
case, whether emphasizing the key verbs or inquiring into the nature of the offense, a violation of
MCL 750.317a occurs at the place of the delivery of the controlled substance. This statute punishes
an individual’s role in placing the controlled substance in the stream of commerce, even when that
individual is not directly linked to the resultant death; that consequences are felt elsewhere is
immaterial, even if those consequences are required elements of the offense.

        3. While the Court of Appeals correctly determined that the proper venue for prosecuting
this case was Wayne County, it reached that conclusion using flawed reasoning. MCL 750.317a
is properly understood as punishing an individual for the act of placing into the stream of
commerce a controlled substance that ultimately causes an individual’s death. Therefore, a
violation of MCL 750.317a occurs at the place of the delivery of the controlled substance. This is
true even though the crime is not complete until all of its elements occur, and both consumption
of a controlled substance and death caused by that consumption are elements of the offense.
Accordingly, MCL 750.317a is not merely a “penalty enhancement”; it is a crime with its own
elements that is distinct from the crime established in MCL 333.7401.

         4. Neither MCL 762.5 nor MCL 762.8 provides a basis for establishing venue in Monroe
County. MCL 762.5 provides that “[i]f any mortal wound shall be given or other violence or injury
shall be inflicted, or any poison shall be administered in 1 county by means whereof death shall
ensue in another county, the offense may be prosecuted and punished in either county.” The word
“inflict” is defined in part as “to impose as something that must be suffered or endured,” and the
word “administer” is defined in relevant part as “[t]o dispense, furnish, supply, or give . . . to the
recipient.” In this case, defendant neither imposed anything on the decedent nor gave anything to
the decedent. Rather, it was alleged that defendant delivered certain substances to the decedent
through an intermediary, with no allegation that defendant even was aware of the decedent’s
existence. He did not interact with the decedent in the fashion contemplated by MCL 762.5 or in
the way the defendant did in People v Southwick, 272 Mich 258 (1935), which was distinguishable
for that reason. Similarly, venue was not properly laid in Monroe County under MCL 762.8, which
provides: “Whenever a felony consists or is the culmination of 2 or more acts done in the
perpetration of that felony, the felony may be prosecuted in any county where any of those acts
were committed or in any county that the defendant intended the felony or acts done in perpetration
of the felony to have an effect.” For MCL 762.8 to apply here, there must have been an act done
in perpetration of the alleged felony in Monroe County by defendant or his agent. There was,
however, no allegation that defendant endeavored to deliver the heroin to the decedent or that he
intended the decedent’s death, nor was it alleged that the decedent intended to die or coordinated
his actions with defendant in any way. In the absence of some indication that the decedent was
implicated in or culpable for defendant’s action, he has not done something in perpetration of
defendant’s offense for purposes of MCL 762.8.

       Court of Appeals judgment affirmed; case remanded for further proceedings.




                                    ©2019 State of Michigan
                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan



OPINION
                                                     Chief Justice:                 Justices:
                                                      Bridget M. McCormack          Stephen J. Markman
                                                                                    Brian K. Zahra
                                                     Chief Justice Pro Tem:         Richard H. Bernstein
                                                      David F. Viviano              Elizabeth T. Clement
                                                                                    Megan K. Cavanagh


                                                                      FILED July 15, 2019



                              STATE OF MICHIGAN

                                       SUPREME COURT


  PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellant,

  v                                                                   No. 157200

  ROMON BERRY McBURROWS,

                Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 CLEMENT, J.
        In this case, we consider whether, in a prosecution for delivery of a controlled

 substance causing death, venue is properly laid in a county if the death, but not the delivery,

 occurred in that county. We conclude that venue in such circumstances is not proper, and

 so we affirm the conclusion of the Court of Appeals in this regard and remand for further

 proceedings not inconsistent with this opinion.
                      I. FACTS AND PROCEDURAL HISTORY1

       On December 12, 2016, Nicholas Abraham—a resident of Monroe County—

contacted an acquaintance, William Ingall, about procuring some heroin. Abraham picked

up Ingall, and the two traveled to a house in Detroit. Abraham gave Ingall money, and

Ingall went into the house to purchase heroin from defendant, Romon McBurrows.

Abraham and Ingall then went to a nearby laundromat parking lot, where they consumed

some of the heroin. Ingall noted that the heroin seemed unusually strong, and he warned

Abraham to be careful when consuming it. Abraham took Ingall home and then returned

to his own home, in Monroe County. Upon arriving at home at about 10:00 p.m., Abraham

provided some heroin to his wife, Michelle, who used it and passed out. When she awoke

in the early morning hours of December 13, she found Abraham unresponsive, and after

failing to resuscitate him, she called the authorities, who pronounced him dead that same

day. An autopsy ultimately concluded that Abraham’s death was caused by fentanyl

toxicity—fentanyl being a substance sometimes mixed with heroin.

       Defendant was charged in Monroe County with one count of delivery of a controlled

substance causing death. He filed a motion disputing Monroe County as a proper venue.2

The trial court denied the motion. Defendant then filed an application for leave to appeal



1
 Because trial has not yet been held, there is no jury verdict in this case. Defendant
maintains that he is innocent of the crimes with which he has been charged but, for the sole
purpose of testing venue, accepts the People’s allegations as true.
2
  Defendant titled his motion a “motion to dismiss for lack of jurisdiction.” The trial court
and Court of Appeals recharacterized it as a venue challenge. Defendant does not challenge
that recharacterization in this Court.



                                             2
on an interlocutory basis in the Court of Appeals, which granted leave and stayed the trial

court proceedings pending the appeal.3 The Court of Appeals ultimately reversed the

judgment of the trial court. People v McBurrows, 322 Mich App 404; 913 NW2d 342

(2017).   The People then appealed in this Court, and we ordered argument on the

application as to whether, on these facts, Monroe County was a proper venue for this

criminal trial. People v McBurrows, 501 Mich 1073 (2018).

                             II. STANDARD OF REVIEW

       “A trial court’s determination regarding the existence of venue in a criminal

prosecution is reviewed de novo.” People v Houthoofd, 487 Mich 568, 579; 790 NW2d

315 (2010). This case also involves certain venue statutes, the interpretation of which we

also review de novo. Tryc v Mich Veterans’ Facility, 451 Mich 129, 145; 545 NW2d 642

(1996).

                                    III. ANALYSIS

       A criminal “trial should be by a jury of the county or city where the offense was

committed.” People v Lee, 334 Mich 217, 226; 54 NW2d 305 (1952). See also 4 LaFave

et al, Criminal Procedure (4th ed), § 16.1(c), pp 777-778 (“American jurisdictions . . . all

utilize the same formula for designating the particular district in which the prosecution

must be initiated and trial held[:] that district in which the ‘crime shall have been

committed.’ ”). This is known as “[t]he ‘crime-committed’ formula.” Id. at 778. The

parameters of this general rule are not, however, codified in Michigan. While MCL 762.1


3
 People v McBurrows, unpublished order of the Court of Appeals, entered July 13, 2017
(Docket No. 338552).


                                             3
provides that “[t]he various courts . . . of this state now having jurisdiction and powers over

criminal causes, shall have such jurisdiction and powers as are now conferred upon them

by law,” this language is too general to provide meaningful guidance. Cf. People v Milton,

393 Mich 234, 245; 224 NW2d 266 (1974) (“The language concerning the jurisdiction of

the courts to try criminal cases embodied in [MCL 762.1] is so general that one cannot

readily determine whether the circuit court’s jurisdiction in criminal cases is

constitutionally vested, derives from the common law, the Judicature Act . . . , or the Code

of Criminal Procedure.”). Instead, what is codified are certain exceptions to or expansions

of the “general rule,” allowing venue in locations besides the location provided for in the

“general rule.” The People here rely on two of these statutory qualifications. Thus,

identifying a proper venue is a two-step process: first, we must identify the proper venue

under the general rule; second, we must determine whether the statutes on which the People

rely permit departure from the general rule.

           A. MICHIGAN’S COMMON-LAW CRIMINAL VENUE RULE

       The general venue rule is derived from the common law. Since statehood, each of

our Constitutions has guaranteed the continuation of a preexisting right to trial by jury. See

Const 1835, art 1, § 9 (“The right of trial by jury shall remain inviolate.”); Const 1850, art

6, § 27 (“The right of trial by jury shall remain . . . .”); Const 1908, art 2, § 13 (same

language as 1850); Const 1963, art 1, § 14 (same language as 1850 and 1908). In Swart v

Kimball, 43 Mich 443, 448; 5 NW 635 (1880), we held that the right which “remains” is

“the right as it existed before; the right to a trial by jury as it had become known to the

previous jurisprudence of the State.” In Swart, we confronted a statute providing that a




                                               4
proper venue for prosecuting an individual who illegally cut timber on public lands was

either “ ‘in the county where the offense was committed, or in such other county as the

Commissioner of the State Land Office, or the Attorney General, shall, by written

instructions to the prosecuting attorney thereof, direct.’ ” Id. at 445, quoting 1857 PA 100,

§ 5. We held that the statute, in “so far as it undert[ook] to authorize a trial in some other

county than that of the alleged offense, [was] oppressive, unwarranted by the Constitution,

and utterly void.” Id. at 450. Several subsequent cases reemphasized Swart’s holding.

See, e.g., Hill v Taylor, 50 Mich 549, 551; 15 NW 899 (1883) (“[I]t cannot be seriously

claimed that the prosecution can be had in a county where the crime was not actually or in

contemplation of law perpetrated. The constitutional guaranty on this subject is too plain

to be controverted.”); People v Harding, 53 Mich 48, 53; 18 NW 555 (1884) (Residence

of jurors in the vicinage of the offense “has always been associated with the jury system in

criminal cases in the jurisprudence of both England and America . . . .”); People v Brock,

149 Mich 464, 466; 112 NW 1116 (1907) (“It would be a startling innovation should we

say that the legislature has power to subject a person charged with crime to prosecution in

any one of several counties . . . .”); People v Olson, 293 Mich 514, 515; 292 NW 860

(1940) (“After these [illegally undersized] fish were shipped by defendant [in Benzie

County] he was not in Newaygo county and cannot, therefore, be prosecuted in that county

upon any theory of constructive possession of the fish in Newaygo county.”).

       Consequently, Michigan’s “crime committed” formula is a function of the

constitutional provision that “[t]he right of trial by jury shall remain,” which is to say, it

continues from its common-law origins. See also Const 1963, art 3, § 7 (“The common

law and the statute laws now in force . . . shall remain in force until they expire by their


                                              5
own limitations, or are changed, amended or repealed.”). Although we have at times said

that “trial should be by a jury of the county or city where the offense was committed,” Lee,

334 Mich at 226 (emphasis added), there should be no confusion that—in the absence of

an applicable statutory exception—this is a mandatory aspect of criminal venue in

Michigan. “The standard formula for setting venue calls for dividing the territory of the

political entity . . . into geographical districts and then selecting as the appropriate venue

that district in which the alleged crime was committed.” LaFave et al, § 16.1(c), p 777.

But how does one define where it is that a crime was committed?

       We find federal law illuminating in this regard.          Because there is a federal

constitutional requirement that “[t]he Trial of all [federal] Crimes . . . shall be held in the

State where the said Crimes shall have been committed,” US Const, art III, § 2, cl 3, the

stakes are particularly high in federal court for identifying where a crime was committed.

The Supreme Court has said that “the locus delicti must be determined from the nature of

the crime alleged and the location of the act or acts constituting it.” United States v

Anderson, 328 US 699, 703; 66 S Ct 1213; 90 L Ed 1529 (1946). One author suggested

that identifying the “essential verb” in the statute creating a crime is the critical inquiry in

identifying the proper venue for a federal prosecution. Dobie, Venue in Criminal Cases in

the United States District Court, 12 Va L Rev 287, 289 (1926). This has given rise to the

“verb test” that is influential in federal court. See generally LaFave, § 16.2(c), pp 842-848.

The Supreme Court has stated, in the federal context, that while “the ‘verb test’ certainly

has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other

relevant statutory language,” because the proper “inquiry [is] into the nature of the

offense,” United States v Rodriguez-Moreno, 526 US 275, 280; 119 S Ct 1239; 143 L Ed


                                               6
2d 388 (1999). That said, scrutinizing the key verbs in a criminal statute remains a common

way to identify the conduct prohibited by a statute. See State v Kell, 276 Ga 423, 425; 577

SE2d 551 (2003) (“Studying ‘the key verbs which define the criminal offense in the statute

is helpful in determining venue in doubtful cases.’ ”) (quotation marks and citation

omitted); LaFave, § 16.2(c), p 848 (“While Rodriguez-Moreno rejected the use of

literalism as an exclusive approach, it left uncertain the precise role of key-verb analysis in

determining the ‘nature of the crime.’ Some lower courts continue to look first to what the

key verb suggests as to proper venue.”).

       It is clear, then, that to identify where defendant’s crime was committed, we must

scrutinize the statute creating defendant’s offense. Defendant is charged with violating

MCL 750.317a, which provides:

               A person who delivers a schedule 1 or 2 controlled substance, other
       than marihuana, to another person in violation of . . . MCL 333.7401, that is
       consumed by that person or any other person and that causes the death of that
       person or other person is guilty of a felony punishable by imprisonment for
       life or any term of years.

We conclude that, whether emphasizing the “key verbs” or inquiring into “the nature of the

offense,” a violation of MCL 750.317a occurs at the place of the delivery of the controlled

substance. As we said in People v Plunkett, 485 Mich 50, 60; 780 NW2d 280 (2010), the

statute punishes “an individual’s role in placing the controlled substance in the stream of

commerce, even when that individual is not directly linked to the resultant death.” That

consequences are felt elsewhere is immaterial, even if those consequences are required

elements of the offense. This point is illustrated by People v Duffield, 387 Mich 300; 197

NW2d 25 (1972). In Duffield, the victim was beaten in his home in Cass County and died



                                              7
in Indiana. In analyzing the rules of jurisdiction and venue in the circuit courts, we held

that “as between counties the common-law rule is that jurisdiction to prosecute for

manslaughter or homicide lies at the place where the blow was given.” Id. at 328. Thus,

the mere fact that a death was felt in a county does not make that county the proper venue

for trying the case; rather, the question is where the crime itself was committed.

Accordingly, the death of the victim in Monroe County does not make Monroe County the

proper venue under the general rule; instead, venue is proper in Wayne County because

that is the county in which the crime itself was committed.

      The Court of Appeals correctly determined that, under the general rule, the proper

venue for prosecuting this case was Wayne County. However, it reached that conclusion

using flawed reasoning.

       MCL 750.317a is properly understood as providing a penalty enhancement
       when a defendant’s criminal act—the delivery of a controlled substance in
       violation of MCL 333.7401—has the result or effect of causing a death to
       any other individual. It is also clear, however, that a defendant’s criminal act
       is complete upon the delivery of the controlled substance. Criminal liability
       has attached at that point. The effects of that completed action merely
       determine the degree of the penalty that a defendant will face despite the fact
       that a defendant need not commit any further acts causing the occurrence of
       any specific result (such as a death by drug overdose). [McBurrows, 322
       Mich App at 413.]

The People argue that the Court of Appeals erred by characterizing MCL 750.317a as a

“penalty enhancement,” and we agree.4         The Court of Appeals characterized MCL


4
 Indeed, it seems that the Court of Appeals was too fixated in general on defendant’s own
act. Consider a scenario in which a defendant installs a car bomb on a victim’s car in one
county, and the victim then drives to another county where the bomb goes off, killing the
victim. As we said in Duffield, in the case of murder or manslaughter venue is proper at
common law where the mortal wound is given, which would indicate that venue would be


                                              8
750.317a as a “penalty enhancement” in reliance on this Court’s statement in Plunkett, 485

Mich at 60, that MCL 750.317a “provides an additional punishment for persons who

‘deliver[]’ a controlled substance in violation of MCL 333.7401 when that substance is

subsequently consumed by ‘any . . . person’ and it causes that person’s death.” The Court

of Appeals read too much into our characterization of MCL 750.317a as providing “an

additional punishment.” It is only an “additional punishment” because MCL 333.7401

itself criminalizes the delivery of a controlled substance, without regard to the

consequences, and punishes it to a lesser degree than MCL 750.317a. Nothing requires the

Legislature to criminalize delivery of a controlled substance at all; it could content itself

with only punishing a delivery if the consumption of the delivered substance causes a death.

In such a scenario, no crime at all would have occurred—and criminal liability would not

have attached—until the death occurred, which illustrates the necessity of the death as an

element of the crime itself, rather than a mere basis for a penalty enhancement.

         To express this concept another way, MCL 750.317a establishes a crime that is

distinct from the crime established in MCL 333.7401, with its own elements. The elements

of a prosecution under MCL 750.317a are: (1) delivery to another person, (2) of a schedule

1 or 2 controlled substance (excluding marijuana), (3) with intent to deliver a controlled

substance as proscribed by MCL 333.7401, (4) consumption of the controlled substance by

a person, and (5) death that results from the consumption of the controlled substance.5


proper where the bomb went off, rather than where the defendant’s act occurred. As it
happens, a violation of MCL 750.317a is committed where the defendant’s wrongful act
occurs, but that does not necessarily define where a crime is committed in all cases.
5
    At least one panel of the Court of Appeals has articulated the elements in a similar fashion.


                                                 9
Although MCL 750.317a is predicated on a violation of MCL 333.7401, it adds elements

that make it a distinct offense. While, as noted, it would be entirely possible for the

Legislature not to criminalize delivery of a controlled substance at all, the fact that it has—

and has provided a different punishment when the consumption of the delivered substance

causes a death—illustrates that what the Court of Appeals characterized as a “penalty

enhancement” is in fact a distinct crime. An “element” of a crime is any “fact[] that

increase[s] the prescribed range of penalties to which a criminal defendant is exposed.”

Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000)

(quotation marks and citation omitted).        Because death, if proved, “increase[s] the

prescribed range of penalties,” it is an “element” as defined in Apprendi and not a mere

“sentencing consideration” or “penalty enhancement,” meaning it “must be submitted to a

jury, and proved beyond a reasonable doubt.” Id.

       All that being said, the Court of Appeals was correct to identify the county in which

the delivery occurred—here, Wayne County—as the proper county in which a prosecution

for a violation of MCL 750.317a should be pursued. In a prosecution for delivery of a

controlled substance causing death, the proper venue at common law is in the county where

the delivery occurred.

                  B. MICHIGAN’S CRIMINAL VENUE STATUTES

       Having identified a proper venue for this case under the general rule, we now must

turn to our statutory venue rules. Swart and its progeny held that a defendant has a



See People v Olger, unpublished per curiam opinion of the Court of Appeals, issued
June 27, 2017 (Docket Nos. 331705 and 331876), p 17.


                                              10
constitutional right—as a preservation of the common law—to be prosecuted in the county

where an offense occurs. This would defeat the validity of any inconsistent venue statute.

However, what Swart did not acknowledge was that while our first Constitution both

preserved a right to a trial by jury and guaranteed criminal defendants “an impartial jury

of the vicinage,” Const 1835, art 1, § 10, our subsequent Constitutions did not retain the

vicinage requirement. On the basis of this lack of a vicinage requirement in our subsequent

Constitutions, an early line of cases established a common-law exception to the right to be

prosecuted in the county where an offense occurred: once proper venue was established, it

could then be moved to another county for good cause shown. See People v Peterson, 93

Mich 27; 52 NW 1039 (1892); People v Fuhrmann, 103 Mich 593; 61 NW 865 (1895); see

also Glinnan v Detroit Recorder’s Court Judge, 173 Mich 674, 688; 140 NW 87 (1913)

(opinion by BIRD, J.) (“For reasons which are historical, the rule that one charged with

crime has a right to be tried by a jury of the vicinage has taken a fast hold on our system of

jurisprudence. The rule itself is not in dispute; only its exceptions are questioned.”).6




6
  More nebulous precedents include Lyle v Cass Circuit Judge, 157 Mich 33; 121 NW 306
(1909), and People v Rich, 237 Mich 481; 212 NW 105 (1927). In Lyle, the trial court
denied a motion for a change of venue and the relator filed a mandamus action in this Court
to compel a different result. The lead opinion by Justice HOOKER denied the writ of
mandamus, asserting “that a judge’s discretion is not reviewable in any manner . . . .” Lyle,
157 Mich at 36. A majority of the justices “concur[red] in the result reached by Justice
HOOKER, but d[id] not desire to be understood that in no case can there be a review of
action involving an abuse of discretion; such question being reviewable on error.” Id. at
42 (opinion by OSTRANDER, MCALVAY, & BROOKE, JJ.). In Rich, an equally divided
Court also affirmed a change of venue on motion.



                                             11
       This discrepancy between the Constitution of 1835 and subsequent Constitutions

also created space for the Legislature to enact statutory venue rules that did not entirely

track the “crime committed” requirement.7           We thus upheld a statute providing for

prosecution of a crime in either county when a crime was committed within 100 rods of

the boundary between the counties. See Bayliss v People, 46 Mich 221; 9 NW 257 (1881);

People v Hubbard, 86 Mich 440; 49 NW 265 (1891); People v Donaldson, 243 Mich 104;

219 NW 602 (1928). We also held that it was proper for the Legislature to “giv[e] to certain

counties bordering on the Great Lakes a common jurisdiction of all offenses committed on

such lakes within this State.” People v Bouchard, 82 Mich 156, 159; 46 NW 232 (1890).

See also People v Coffee, 155 Mich 103, 107; 118 NW 732 (1908).

       The reason for creating an enlarged vicinage for the trial of offenses
       committed upon the Great Lakes is obvious, on account of the great difficulty
       which would be encountered in determining in which of the bordering
       counties the commission of the act took place. It is quite evident that the
       necessity of the situation was what gave rise to this enlarged vicinage. While
       the general rule is that the county is the vicinage, there are some exceptions
       thereto where justice demands it. . . .

               . . . The fixing of the boundaries of a vicinage is a legislative function,
       and it has been exercised in this State by the legislature declaring that the
       county shall be the unit in which jurors shall be selected to try offenses
       committed therein, and this rule has been steadily and consistently adhered
       to, save in unusual cases where the proper administration of justice
       demanded an enlarged jurisdiction. We see nothing in this section which
       indicates that the legislature has exceeded its powers. It has created an
       enlarged vicinage for the trial of all offenses committed upon the waters of
       Lake Huron, because the vicinage of the county would be an impracticable
       one. If these jurisdictions are larger than they should be, it must be remedied


7
  After all, “[i]t is axiomatic that the Legislature has the authority to abrogate the common
law.” Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 389; 738 NW2d
664 (2007).


                                               12
       by the legislature, and not by the courts. [Andrews v Ellsworth, 190 Mich
       157, 160-161; 156 NW 115 (1916).]

       As exceptions to the Swart rule continued to mount, the camel’s back was soon to

break. In People v Richards, 247 Mich 608; 226 NW 651 (1929), we rejected a defendant’s

challenge to a statute providing that the proper venue in a prosecution for prison escape

was not in the county where the escape took place, but rather in the county where the

administrative office of the prison was located. We wrote that while

       [i]t [was] true that he departed from custody in Clinton county, . . . his escape
       was from imprisonment in the State prison, and such escape, and not the mere
       place of his departure, was the gist of the offense, and he cannot be heard to
       say that he has been deprived of a constitutional right by trial in Jackson
       county. [Id. at 613.]

The dissent argued that Swart and its progeny were decisive, and “[o]nly by the adoption

of a legal fiction, which to my mind is fallacious, can these decisions be circumvented, and

it be held that a crime actually committed in Clinton county was in contemplation of law

committed in Jackson county.” Id. at 609 (FELLOWS, J., dissenting). Not long thereafter,

the Swart decision itself was challenged as simply being poorly reasoned, in that it ignored

that the Michigan Constitution of 1850 (and subsequent Constitutions) omitted a vicinage

requirement. See Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage

and Venue, 43 Mich L Rev 59, 80-87 (1944). The Blume article also asserted that Swart

misinterpreted the state of the common-law venue rules at the time Michigan became a

state, such that there was substantially more legislative flexibility at common law to expand

or alter venue rules than Swart acknowledged. Id.

       The Blume criticism of Swart was ratified by this Court in Lee. We acknowledged

that Swart “ha[d] been criticized on the ground that Justice COOLEY overlooked the fact



                                              13
that the Michigan Constitution of 1850 had omitted the words, ‘of the vicinage.’ ” Lee,

334 Mich at 225. We then noted that several cases since Swart “ha[d] shown a departure

in certain instances from a strict application of the rule that the jury must be of the vicinage,

or of the county,” id., including Bayliss, Hubbard, Peterson, and Glinnan, along with

People v Southwick, 272 Mich 258; 261 NW 320 (1935), and People v Coapman, 326 Mich

321; 40 NW2d 167 (1949), which had upheld prosecutions under MCL 762.5 (allowing for

a prosecution in either the county where the injury occurs or the death results where

“violence or injury shall be inflicted, or any poison shall be administered”). We concluded

in Lee that “ ‘[i]n the absence of any limitation by constitutional provision, it seems to be

generally recognized that the power of a State legislature to fix the venue of criminal

prosecutions in a county or district other than that in which the crime was committed is

unrestricted.’ ” Lee, 334 Mich at 225, quoting Anno: Constitutionality of Statute for

Prosecution of Offense in County Other Than That in Which it was Committed, 76 ALR

1034, 1035, § II.

       In sum, then, when we said in Lee that a crime “should” be prosecuted where it was

committed, we were recognizing a requirement that it be prosecuted where it was

committed, even while expressly acknowledging the broad prerogative of the Legislature

to enact statutes that provide for alternative venue. Lee recognized that what Swart had

said was a constitutional right—trial in the county where a crime is committed—is instead

a default rule that the Legislature is free to adjust statutorily.8 That rule is grounded in the


8
  Thus, in Richards, we felt obliged to rationalize the venue statute at issue as being
consistent with Swart, and resorted to what the dissent called a “legal fiction” to reach that
result. Richards, 247 Mich at 609 (FELLOWS, J., dissenting). Were we to decide Richards


                                               14
common law and focuses on identifying the one county where the crime was committed.

However, the Legislature has the authority to specifically provide for other venues by

statute, and it has done so in Chapter II of the Code of Criminal Procedure, which contains

several venue rules for criminal prosecutions that supplement the general rule. The People

here allege that venue is properly laid in Monroe County under either of two of these

provisions.

       The first provision the People cite, MCL 762.5, provides that “[i]f any mortal wound

shall be given or other violence or injury shall be inflicted, or any poison shall be

administered in 1 county by means whereof death shall ensue in another county, the offense

may be prosecuted and punished in either county.” The People theorize that the delivery

of the controlled substance in this matter—which occurred in Wayne County—was akin to

a “ticking time bomb,” such that the delivery of it qualified as giving a mortal wound that

can be prosecuted under the statute in the county where the death occurred. They also

argue that heroin is a “poison” under the statute, such that, again, the death that resulted

from consuming it can be prosecuted in the county where the death occurred. In support,

they cite Southwick. In Southwick, the decedent traveled from Oakland County to Jackson

County where the defendant doctor provided her with unlawful medical treatment.

Southwick, 272 Mich at 260. About a week later, the decedent passed away in Oakland

County. We affirmed the propriety of charging the defendant in Oakland County under

the venue statute now codified at MCL 762.5. The People argue that just as the procedure



again, Lee would make clear that the Legislature is free to adopt venue statutes, relieving
us of the need to reconcile any given venue statute to the Swart rule.


                                            15
in Southwick was a mortal wound, “the delivery of these dangerous controlled substances

was a mortal wound or injury.”

       Neither theory advanced by the People is supported by Southwick. The statute

requires that a mortal wound be inflicted, or a poison9 be administered. The word “inflict”

is defined as “[t]o lay on as a stroke, blow, or wound; to impose as something that must be

suffered or endured; to cause to be borne.” Oxford English Dictionary (2d ed). The word

“administer” is defined in relevant part as “[t]o dispense, furnish, supply, or give . . . to the

recipient[.]” Id. Neither occurred here. Defendant neither imposed anything on the

decedent nor gave anything to the decedent.

       Our conclusion that venue under MCL 762.5 requires more direct interaction with

the victim is consistent with Southwick, in which the defendant’s unlawful medical

treatment was “wilful” and performed “upon the body” of the decedent. Southwick, 272

Mich at 262. Nothing in Southwick supports the People’s theory in this case, because in

Southwick it was alleged that the defendant had either acted directly upon the decedent’s

body or provided “medicines, drugs and substances,” id. at 260, directly to her as part of a

course of treatment. Here, by contrast, it is alleged that defendant delivered certain

substances to the decedent, and only through an intermediary at that, with no allegation

that defendant even was aware of the decedent’s existence. He did not interact with the

decedent in the way the defendant did in Southwick, or in the fashion contemplated by

MCL 762.5.



9
 Given our analysis, we do not decide whether heroin is a “poison” for purposes of MCL
762.5.


                                               16
       The People also argue that venue is properly laid in Monroe County under MCL

762.8. That statute provides:

              Whenever a felony consists or is the culmination of 2 or more acts
       done in the perpetration of that felony, the felony may be prosecuted in any
       county where any of those acts were committed or in any county that the
       defendant intended the felony or acts done in perpetration of the felony to
       have an effect.

There is no argument here that defendant “intended” for any effects of his offense to be felt

in Monroe County. The People argue, however, that an essential element of defendant’s

crime is the decedent’s death, and that the decedent’s death was caused by his consumption

of the heroin. The People contend that the decedent’s consumption of the heroin was thus

an “act[] done in the perpetration of [defendant’s] felony,” in that it was an act which had

to occur to satisfy all the elements of defendant’s offense. The Court of Appeals concluded

that MCL 762.8 does not apply here because “the alleged crime—with the exception of the

sentencing enhancement for the death of [the decedent]—was complete at the point of

sale,” meaning “there was no further act to be committed ‘in the perpetration of that

felony[.]’ ” McBurrows, 322 Mich App at 415-416.

       As noted in our discussion of identifying the proper venue under Michigan’s default

rule, we agree with the People that MCL 750.317a is not a “sentencing enhancement.”

Further, as we noted in our earlier discussion, the alleged crime here was not complete at

the point of sale. Although we disagree with the Court of Appeals’ reasoning, that Court

correctly concluded that venue is not proper in Monroe County under MCL 762.8. For

MCL 762.8 to apply, there must have been an “act[] done in the perpetration of

[defendant’s] felony” in Monroe County. The prosecution contends that venue is proper



                                             17
because the decedent’s acts of consuming the heroin and dying were also “acts done in

perpetration” of MCL 750.317a. We disagree. “Perpetration” is defined as “[t]he action

of perpetrating or performing (an evil deed); the committing (of a crime)[.]” Oxford

English Dictionary (2d ed).        It carries with it a connotation of culpability or

blameworthiness, as though a part of the defendant’s endeavor. Thus, the Legislature’s use

of the word “perpetration” serves to limit the application of MCL 762.8 to the conduct of

a criminal actor or his agent.10 But there is no allegation here that defendant endeavored

to deliver this controlled substance to the decedent, or that he intended the decedent’s

death; nor is it alleged that the decedent intended to die or coordinated his actions with

defendant in any way. In the absence of some indication that the decedent was implicated

in or culpable for defendant’s action, he has not done something in perpetration of

defendant’s offense. Consequently, MCL 762.8 is not an adequate basis for establishing

venue in Monroe County—not because the crime was complete at the point of the delivery,

but rather, because the decedent’s acts (which were necessary to complete the elements of




10
    Cf. Rodriguez-Moreno, 526 US at 280 & n 4 (recognizing a distinction between
“circumstance elements” and “conduct elements” in locating the proper venue for a federal
criminal prosecution); United States v Myers, 854 F3d 341, 359 (CA 6, 2017) (Kethledge,
J., concurring in part and dissenting in part) (“In determining where a crime was committed
for purposes of constitutional venue, . . . the court looks to the place of the ‘conduct
elements’ rather than to the place of any ‘circumstance element[s]’ of the offense.”). While
the victim’s death in this matter was an essential element of the offense and must be proved
beyond a reasonable doubt, it is analogous to the sort of “circumstance element” recognized
by federal law that does not establish proper venue, rather than a “conduct element,” which
does.



                                            18
the offense) were unconnected to defendant’s and therefore did not implicate the decedent

or make him culpable for defendant’s behavior.11

                                  IV. CONCLUSION

       Neither statute that the People cite is an adequate basis for venue in Monroe County.

Consequently, while we disagree with the Court of Appeals’ characterization of

MCL 750.317a as a mere “penalty enhancement” statute, we agree with its conclusion that

Wayne County is the proper county for the prosecution of this offense under the general

rule. We further agree that under the facts of this case neither MCL 762.5 nor MCL 762.8

provides an exception to the general rule sufficient to establish venue in Monroe County,

and we remand to the trial court for further proceedings not inconsistent with this opinion.


                                                         Elizabeth T. Clement
                                                         Bridget M. McCormack
                                                         Stephen J. Markman
                                                         Brian K. Zahra
                                                         David F. Viviano
                                                         Richard H. Bernstein
                                                         Megan K. Cavanagh




11
   The People also argue in this Court—for the first time—that “the Delivery of a
Controlled Substance constitutes a conspiracy and acts in furtherance of the conspiracy
occurred in Monroe County.” We need not consider this argument, because “[i]ssues and
arguments raised for the first time on appeal are not subject to review.” In re Forfeiture of
Certain Personal Prop, 441 Mich 77, 84; 490 NW2d 322 (1992). Moreover, MCL 762.8
requires that “the felony” the defendant is being prosecuted for be the same as “the felony”
that occurred in multiple counties and gives rise to venue under MCL 762.8. But defendant
is not charged with any conspiracy; consequently, while we express no opinion as to
whether a conspiracy could be alleged on these facts, even if it could, MCL 762.8 would
not apply here because no conspiracy has been alleged.


                                             19
