            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 5, 2019
               Plaintiff-Appellee,

v                                                                  No. 341621
                                                                   Ingham Circuit Court
JOHN FRANCIS DAVIS,                                                LC No. 17-000406-FH

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                  No. 341627
                                                                   Ingham Circuit Court
GERALD MAGNANT,                                                    LC No. 17-000407-FH

               Defendant-Appellant.


Before: SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ.

PER CURIAM.

                Defendants appeal two orders, one denying their joint motion to quash the
information and one denying their joint motion to dismiss the case for a due process violation.
Defendants had been bound over on charges of transporting over 3,000 cigarettes without a
license to transport them, contrary to the Tobacco Products Tax Act (TPTA), MCL 205.421 et
seq., and more particularly MCL 205.428(3). In denying defendants’ motions to dismiss, the
circuit court concluded that under People v Shouman, unpublished per curiam opinion of the
Court of Appeals, issued October 4, 2016 (Docket No. 330383), the statute provided adequate
notice that individuals can be transporters in violation of the statute. In denying the motion to
quash, the circuit court concluded that there was evidence of at least constructive possession and
evidence of knowledge that the truck defendants were driving had illegal cigarettes. Defendants
filed an interlocutory appeal, we granted leave, and the cases were consolidated for
administrative efficiency. 1 We now affirm.

                                        I. BACKGROUND

        Defendants were nonsupervisory employees of the Keweenaw Bay Indian Community
(KBIC). On December 11, 2015, defendant John Francis Davis was driving a KBIC truck
pulling a trailer and defendant Gerald Magnant was a passenger. A Michigan State Police officer
pulled the truck over for speeding. During the stop—which did not occur on KBIC property—56
cases of “Seneca” cigarettes were found in the trailer. The cigarettes bore a KBIC stamp but no
Michigan Department of Treasury tax stamp. The parties stipulated that there was no record of
any tobacco license or transport license for the KBIC, its affiliates, or defendants. Defendant
Magnant allegedly admitted that he had helped load the trailer, but there was no indication that
either defendant was actually aware that a license was needed to transport the tobacco products
under state law.

                                          II. ANALYSIS

A.     Motion to Quash

        On appeal, defendants first argue that the circuit court erred by denying their motion to
quash the information, asserting that the statute required not only that they have knowledge that
they were transporting cigarettes but also knowledge that it was illegal to transport the tobacco
products without a license. They asserted that such knowledge was lacking, and defendant Davis
also asserted that, in any event, there was no evidence establishing probable cause to believe that
he knew he was transporting cigarettes.

       “This Court reviews a trial court’s decision on a motion to quash the information for an
abuse of discretion.” People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010). The trial
court abuses its discretion where its decision falls “outside the range of principled outcomes.”
People v Shami, 501 Mich 243, 251; 912 NW2d 526 (2018). We review de novo questions of
law. People v McKerchie, 311 Mich App 465, 471; 875 NW2d 749 (2015).

        In all felony cases, the district court has a duty “to determine whether a crime has been
committed and if there is probable cause to believe that the defendant committed it.” People v
Laws, 218 Mich App 447, 451-452; 554 NW2d 586 (1996) (cleaned up). “To bind a criminal
defendant over for trial in the circuit court, the district court must find probable cause to believe
that the defendant committed a felony.” Shami, 501 Mich at 250. Probable cause “requires
sufficient evidence of each element of the crime charged, or from which the elements may be



1
 People v John Francis Davis, unpublished order of the Court of Appeals, entered July 18, 2018
(Docket No. 341621); People v Gerald Magnant, unpublished order of the Court of Appeals,
entered July 18, 2018 (Docket No. 341627).


                                                -2-
inferred, to cause a person of ordinary prudence and caution to conscientiously entertain a
reasonable belief of the defendant’s guilt.” Id. at 250-251 (cleaned up).

       Intent to Violate MCL 205.428(3). Defendants first argue that, because there was no
evidence presented that defendants knew they were required to have a license to transport
tobacco products, the district court could not have found probable cause to bind them over on a
charge under MCL 205.428(3). We disagree.

        The district court found that there was probable cause to believe that defendants violated
MCL 205.428(3) of the TPTA, which provides in pertinent part that a “person who possesses,
acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes, tobacco
products other than cigarettes with an aggregate wholesale price of $250.00 or more, 3,000 or
more counterfeit cigarettes . . . is guilty of a felony.” The purpose of the TPTA is to “regulate
and license manufacturers of tobacco products, as well as provide penalties for violations of the
act.” Shami, 501 Mich at 251-252. The Act provides that a “person shall not purchase, possess,
acquire for resale, or sell a tobacco product as a manufacturer, wholesaler, secondary wholesaler,
vending machine operator, unclassified acquirer, transportation company, or transporter in this
state unless licensed to do so.” MCL 205.423(1). Thus, a person possessing a tobacco product
as a transporter must be licensed under the Act, and if that person transports a certain value or
quantity of tobacco product without a license, then the person is guilty of a felony. Id.; see also
Shami, 501 Mich at 247, 251-252 (addressing who is a “manufacturer” under the TPTA).

        Relying on Shouman, the circuit court found that the prosecutor was required to prove
“[t]hat defendants knowingly transported cigarettes, that defendants did not have a Michigan
Department of Treasury license or permit to transport tobacco, and that defendants transported
3,000 or more cigarettes.” Defendants argue that, in addition to having knowledge that they
were transporting cigarettes, the statute requires that they “must have knowingly possessed or
transported cigarettes ‘contrary to this act’ or with knowledge that they were required to obtain a
transporter license but did not do so.”

        “Criminal intent can be one of two types: the intent to do the illegal act alone (general
criminal intent) or an act done with some intent beyond the doing of the act itself (specific
criminal intent).” People v Janes, 302 Mich App 34, 41; 836 NW2d 883 (2013) (cleaned up).
Here, MCL 205.428(3) does not specify an intent requirement. Still, “the omission of any
mention of criminal intent must not be construed as eliminating the element from the crime,”
and, therefore, we must “infer the presence of the element unless a statute contains an express or
implied indication that the legislative body wanted to dispense with it.” Id. at 43 (cleaned up).2

       Defendants argue that People v Nasir, 255 Mich App 38; 662 NW2d 29 (2003), supports
their proposition that the intent requirement should have been that “defendants knowingly


2
 We note that the default mens rea statute enacted by our Legislature, MCL 8.9, does not apply
here because the offense was committed before January 1, 2016. MCL 8.9(1). With that said,
we agree with the panel’s observation in Shouman that “it does not appear that the application of
MCL 8.9(1) would require a different outcome.” Shouman, unpub op at 4 n 2.


                                                -3-
possessed or transported cigarettes ‘contrary to this act,’ i.e., with knowledge that they were
required to obtain a transporter license but did not do so” (emphasis added). In Nasir, this Court
analyzed a different subsection of the TPTA, MCL 205.428(6), which does not contain an
explicit fault element, to determine whether the statute provided for strict liability, that is, no
requirement to prove intent. Id. at 40-41. MCL 205.428(6) provides in pertinent part:

        A person who manufactures, possesses, or uses a stamp or manufactures,
       possesses, or uses a counterfeit stamp or writing or device intended to replicate a
       stamp without authorization of the department, a licensee who purchases or
       obtains a stamp from any person other than the department, or who falsifies a
       manufacturer’s label on cigarettes, counterfeit cigarettes, gray market cigarette
       papers, or counterfeit cigarette papers is guilty of a felony.

The Nasir Court weighed several factors to determine “whether the Legislature . . . intended to
require some fault as a predicate to finding guilt.” Nasir, 255 Mich App at 41. The Nasir Court
held that “knowledge is an element of the offense of which defendant stands convicted.” Id. at
45. Specifically, the Nasir Court concluded that, to convict under MCL 205.428(6), the
prosecutor had to demonstrate that “the defendant possessed or used the counterfeit tax stamp, or
a writing or device intended to replicate a stamp, with knowledge that the stamp, writing, or
device was not an authentic tax stamp.” Id. at 45-46.

         Defendants argue that, following Nasir, the intent element that should have been read
into the language of MCL 205.428(3) is a knowing possession of 3,000 or more cigarettes,
knowing that the possession was “contrary to” the TPTA. In other words, defendants argue that
the statute requires that they have knowledge that a license was required to transport the
cigarettes legally. Again, the statute states, “A person who possesses, acquires, transports, or
offers for sale contrary to this act 3,000 or more cigarettes . . . is guilty of a felony.” MCL
205.428(3). Thus, the question is whether the intent of “knowingly,” which is not expressly in
the act, applies to just the “possession of cigarettes,” or to both “the possession of cigarettes” and
“contrary to the act.”

        Notably, in interpreting MCL 205.428(6), the Nasir Court concluded, “We do not believe
that the Legislature intended that the offense contain a specific intent element, nor do we believe
that a defendant need act with knowledge that the defendant does so without the authorization of
the Michigan Department of Treasury.” Nasir, 255 Mich App at 46. Thus, it would be
consistent with Nasir to interpret MCL 205.428(3) as a general-intent crime requiring only the
intent to do the illegal act of transporting the cigarettes without a license, rather than a specific-
intent crime requiring the intent to violate the TPTA. Note that Nasir requires an intent to do the
illegal act alone of possessing or using a counterfeit tax stamp that defendant knew was not
authentic, and has as a separate element “that the defendant acted without authorization of the
Michigan Department of Treasury.” Id. This is similar to the circuit court here requiring the
prosecutor to demonstrate that defendants knew that they transported cigarettes, and separately
that they “did not have a Michigan Department of Treasury license or permit to transport
tobacco.” Thus, it appears that the phrase, “contrary to the act,” included in MCL 205.428(3),
describes the unlicensed status of the tobacco transporter, possessor, or manufacturer, rather than
the knowledge of the defendants.


                                                 -4-
       This reading is consistent with the conclusion reached by another panel of this Court in
Shouman. The Shouman Court considered the argument that defendants have made here, and
concluded:

       Indeed, this Court in Nasir explicitly rejected the proposition that the offense in
       MCL 205.428(6) contained a specific intent element and concluded that the
       prosecutor did not have to prove that the defendant knew that he lacked the
       authorization of the Michigan Department of Treasury. Nasir, 255 Mich App at
       46. Accordingly, defendant’s suggestion below that Nasir should be read to
       require proof in this case that defendant knew he was required to have a license to
       transport tobacco products and that he specifically intended to violate the TPTA is
       utterly without any support from the holding in Nasir, in addition to lacking any
       basis in the language of MCL 205.428(3). [Shouman, unpub op at 6.]

Even though Shouman, as an unpublished case, is not binding on this Court, the Shouman panel’s
thorough analysis of this issue and sound reasoning is persuasive. MCR 7.215(C)(1). Thus, the
circuit court’s determination that the district court applied an appropriate intent standard to MCL
205.428(3) was not an error of law.

         Knowing Transport of Tobacco Products. Defendant Davis argues that the district court
erred by finding probable cause to believe that he knew that he was transporting cigarettes. The
district court found such probable cause because, “taken as a whole, his work assignment, the
amount of cigarettes, statements and demeanor viewed on the video indicated [defendant
Davis’s] knowledge of the cigarettes being transported in the trailer.”

        At the preliminary examination, Detective Kevin Ryan testified that he witnessed the
truck that defendant Davis was driving arrive at a storage area and drive away. Trooper Chris
Lajimodiere, who ultimately stopped the truck for speeding, said that defendant Davis told him
that he and his passenger, defendant Magnant, were driving to a store in the area and were
hauling supplies. According to Trooper Lajimodiere, either defendant Davis or defendant
Magnant also told him that they were hauling “chips.” At Trooper Lajimodiere’s request,
defendant Davis unlocked and opened the trailer, exposing numerous cardboard boxes of
“Seneca” cigarettes. Trooper Lajimodiere reported that defendant Davis said, “There you go,
boss,” that he said to defendant Davis, “You knew that stuff was back there,” and that defendant
Davis replied that he was just a worker and did not pack the trailer. The police seized 56 cases
of Seneca cigarettes, each containing 12,000 cigarettes. According to Detective Ryan, while he
and another officer were transporting defendant Magnant, defendant Magnant told them that he
was involved in loading the cigarettes into the truck and had transported cigarettes for a long
time for the KBIC. A videorecording of the traffic stop was entered into evidence.

        Defendant Davis argues accurately that, at this stage in the proceedings, the prosecutor
has not offered any direct evidence that he knew that he was transporting cigarettes.
Nonetheless, there was sufficient circumstantial evidence that defendant Davis knew that there
were cigarettes in the trailer to bind him over on this charge. Defendant Magnant’s statements
that he loaded the cigarettes and that his work involved transporting cigarettes for the KBIC were
evidence that the truck was being used as a cigarette delivery vehicle at the time it was stopped,


                                                -5-
and was circumstantial evidence that defendant Davis, as the driver of the truck, was complicit in
delivering what his codefendant knew were cigarettes.

        The district court also cited the amount of cigarettes found in the trailer. The sheer
volume made it less likely that defendant Davis not know what was in the truck. Additionally,
defendant Davis admitted to Trooper Lajimodiere that he was working, and it would be
reasonable to infer that defendant Davis was as aware of his work assignment as was defendant
Magnant. The district court also cited the statements defendant Davis made to police and his
demeanor on the videorecording as evidence that defendant Davis knew that there were
cigarettes in the trailer. Thus, there was sufficient circumstantial evidence that defendant Davis
knew of the cigarettes to present the question to the jury.

       The circuit court did not err by denying defendants’ motion to quash the bindover.

B.     Motion to Dismiss

        Defendants next argue that the circuit court erred by denying their motion to dismiss
based on their claim that MCR 205.428(3) is unconstitutionally vague. “This Court reviews a
trial court’s ruling regarding a motion to dismiss for an abuse of discretion.” People v Adams,
232 Mich App 128, 132; 591 NW2d 44 (1998). We review de novo constitutional issues of law.
People v Hall, 499 Mich 446, 452; 884 NW2d 561 (2016).

       “The ‘void for vagueness’ doctrine is derived from the constitutional guarantee that the
state may not deprive a person of life, liberty, or property, without due process of law.” People v
Roberts, 292 Mich App 492, 497; 808 NW2d 290 (2011). A statute may be overly vague where
“it does not provide fair notice of the conduct proscribed,” or is “so indefinite that it confers
unstructured and unlimited discretion on the trier of fact to determine whether an offense has
been committed.” Id. (cleaned up). “A statute must give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited or required.” People v Noble, 238 Mich App
647, 652; 608 NW2d 123 (1999).

        Defendants were charged with transporting cigarettes without a license to transport
tobacco. As previously stated, MCL 205.428(3) provides in pertinent part that a “person who
possesses, acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes,
tobacco products other than cigarettes with an aggregate wholesale price of $250.00 or more,
3,000 or more counterfeit cigarettes . . . is guilty of a felony.” MCL 205.423(1) provides, in
relevant part, that “a person shall not purchase, possess, acquire for resale, or sell a tobacco
product as a manufacturer, wholesaler, secondary wholesaler, vending machine operator,
unclassified acquirer, transportation company, or transporter in this state unless licensed to do
so.” “Person” is defined by MCL 205.422(o) to include “an individual . . . corporation, or other
legal entity.” Thus, the statutory language of MCL 205.423(1) and MCL 205.428(3) makes clear
that an individual possessing 3,000 or more cigarettes for transport, without having a license to
do so, is guilty of a felony.

       Defendants’ vagueness argument focuses not on the language of the relevant statutes, but
rather on the interpretation of that language by two Department of Treasury employees.
Defendants note that Angela Littlejohn, the manager of the Tobacco Tax Unit, testified that, to

                                                -6-
transport tobacco products in Michigan, an individual would have to work for a wholesaler or
unclassified acquirer with a transporter’s license, be a licensed transporter, or be an interstate
commerce carrier. Doug Miller, the administrator of special taxes, clarified that, if a Michigan
licensed tobacco wholesaler had an employee transport tobacco to another place in Michigan, the
employee would not need an individual tobacco transporter license. Essentially defendants argue
that, under these employees’ interpretations, the statute does not put them on notice of a potential
violation because that violation hinges on whether their employer has obtained the license. We
disagree.

        First, departmental interpretations of statutes, although entitled to respectful
consideration, are not binding on this Court. D’Agostini Land Company LLC v Dep’t of
Treasury, 322 Mich App 545, 558; 912 NW2d 593 (2018). As already discussed, the plain
language of the statute indicates that an individual violates the TPTA by possessing for transport
large quantities of tobacco without a license. Second, even if the department’s interpretations are
credited, the statute makes clear that someone—either the individual or the individual’s
employer—must have a license authorizing the possession for transport of a large quantity of
tobacco. Thus, the statute is sufficiently clear to put defendants on notice that, if they did not
personally hold individual licenses to possess the tobacco for transport, they should have
inquired as to whether their employer—the KBIC—held such a license before accepting the load
for transport. The statute is not unconstitutionally vague.

        The dissent does raise an interesting point based on this Court’s decision in People v
Assy, 316 Mich App 302; 891 NW2d 280 (2016). Ultimately, we conclude that the Assy decision
is distinguishable from this one. The statute here defines the term “transporter” to include “a
person . . . transporting in this state, a tobacco product.” MCL 205.422(y). The statute further
defines the term “person” to include both individuals and legal entities, MCL 205.422(o), and
provides that a “person” can be a “transporter,” MCL 205.422(y). Therefore, under a plain
reading of the statutory language, an individual driver can be subject to prosecution under the
TPTA as a “transporter.”

         The dissent, however, points to this Court’s decision in Assy and concludes that the
Legislature did not intend to include within the definition of “transporter” any low-level
employees, such as those who drive the vehicles transporting cigarettes. In Assy, this Court
concluded that the term “retailer” did not include “a cashier or stocker,” but only included “a
person who directs or manages the business.” The Assy Court reached this conclusion based on
the statute’s requirement that a “retailer” means a person who “operates a place of business” and
read the term “operates” to include an element of direction and control, i.e., “someone who has
control over the business’s day-to-day operations.” Assy, 316 Mich App at 310-311. In contrast,
the Legislature defined the term “transporter” to include “a person . . . transporting in this state, a
tobacco product.” The verb “transport” is defined to mean “To carry or convey (a thing) from
one place to another.” Black’s Law Dictionary (10th ed.). Contrary to the ordinary meaning of
the term “retailer,” the ordinary meaning of the term “transport” or “transporter” only requires
the physical action of carrying or conveying a thing, in this case, cigarettes. Therefore, this case
is distinguishable from Assy, in that the ordinary meaning of the term “transporter” reasonably
includes the individuals who drive truckloads of cigarettes.



                                                 -7-
Affirmed.



                  /s/ Brock A. Swartzle
                  /s/ David H. Sawyer




            -8-
