            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 12, 2019
               Plaintiff-Appellee,

v                                                                  No. 346661
                                                                   Livingston Circuit Court
KEVIN WHITE, JR.,                                                  LC No. 18-025036-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        In this interlocutory appeal, defendant was charged with aiding and abetting delivery of a
controlled substance causing death, MCL 750.317a, and appeals by leave granted1 the trial
court’s order denying his motion to dismiss for improper venue. We recognize that, under
People v McBurrows, ___ Mich___; ___NW2d___ (2019) (Docket No. 157200), venue is
generally proper only in the county where the delivery took place. However, although the
delivery in this case occurred in Macomb County, we conclude that venue was nonetheless
proper in Livingston County because, pursuant to MCL 762.8, defendant intended his actions to
have an effect in that county. We affirm.

                                I. FACTUAL BACKGROUND

       According to testimony presented at defendant’s preliminary examination, on October 24,
2017, the decedent, Thomas Whitlow, Jr., traveled with three companions—his mother, Kelly
Whitlow; Kelly’s boyfriend, Craig Betke; and Kelly’s friend, Danielle Hannaford—from Betke’s
home in Howell, Michigan, to a gas station in Macomb County, Michigan, to meet defendant for
the purpose of purchasing heroin and cocaine. When defendant arrived at the gas station,
Hannaford got into his vehicle and purchased the substances from him. Thomas and his


1
 People v White, unpublished order of the Court of Appeals, entered April 9, 2019 (Docket No.
346661).



                                               -1-
companions then returned to Betke’s home in Howell, where, later that day, Thomas died of
fentanyl and cocaine toxicity. Defendant was charged and bound over in Livingston County for
aiding and abetting the delivery of a controlled substance causing death, MCL 750.317a.2
Defendant moved to dismiss for improper venue, arguing that, under People v McBurrows, 322
Mich App 404; 913 NW2d 342 (2017),3 venue was proper only in Macomb County, where the
delivery took place. The trial court denied the motion, concluding that defendant knew that his
actions would have an effect in Livingston County, and that McBurrows did not contemplate
such a scenario. We agree.

                                          II. ANALYSIS

        “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). “A trial
court’s ruling addressing a motion to dismiss is reviewed for an abuse of discretion.” People v
Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013). “An abuse of discretion occurs when the
trial court chooses an outcome falling outside the range of principled outcomes.” People v Buie,
491 Mich 294, 320, 817 NW2d 33 (2012).

        “A criminal ‘trial should be by a jury of the county or city where the offense was
committed.’ ” McBurrows, ___ Mich at ___; slip op at 3, quoting People v Lee, 334 Mich 217,
226; 54 NW2d 305 (1952). This rule, known as “the ‘crime-committed’ formula,” is universally
applicable unless a specific legislative exception applies. Id. at ___; slip op at 3-4 (quotation
marks omitted). “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” a legislatively
crafted exception applies. Id. at ___; slip op at 4.

      Defendant was charged with delivery of a controlled substance causing death under 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.

MCL 750.317a “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.” People v
Plunkett, 485 Mich 50, 60; 780 NW2d 280 (2010). Although the death of a person is an element
of the crime proscribed by MCL 750.317a, McBurrows, ___ Mich at ___; slip op at 8-9, the



2
    Hannaford was charged for delivering the substances directly to Thomas.
3
  During the pendency of this appeal, our Supreme Court issued an opinion in McBurrows
affirming our result but disagreeing with our reasoning. The Supreme Court’s opinion is
discussed in further detail below.


                                                 -2-
“act” that makes up the offense for a defendant’s purposes is the actual delivery of the controlled
substance, id. at ___; slip op at 7-9. As such, in McBurrows, our Supreme Court unequivocally
concluded that “a violation of MCL 750.317a occurs at the place of the delivery of the controlled
substance.” Id. at ___; slip op at 7. Therefore, “[i]n a prosecution for delivery of a controlled
substance causing death, the proper venue at common law is in the county where the delivery
occurred.” Id. The delivery in this case undisputedly occurred in Macomb County.

       However, the trial court believed that venue was nonetheless proper in Livingston County
because defendant knew that his actions would have an effect in that county. Indeed, MCL
762.8 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.

Pursuant to the latter section of the statute,4 where a defendant intends for an offense or for the
acts done in perpetration of an offense to have an effect in a certain county, that county may
serve as an appropriate venue for prosecution.5

       Defendant contends that, despite the fact that the statute authorizes venue in counties in
which a defendant intends a felony to have an effect, the statute does not authorize venue in a
county where a defendant’s felony merely “happens to have an effect.” We are inclined to agree
with the trial court, however, that defendant’s act did not merely happen to have an effect in
Livingston County. The trial court determined that defendant was aware that Thomas and his
companions were driving from Livingston County to purchase heroin and cocaine, and defendant
was aware that they would likely return to Livingston County to consume the substances. This
was not happenstance. Defendant sold the substances with the understanding that they would be
consumed and with knowledge of where that would happen.

        Accordingly, although McBurrows would generally provide that venue was only proper
in Monroe County because that is where the delivery occurred, MCL 762.8 provides that venue
is also proper in Livingston County because defendant understood that his felony would have an


4
  Although McBurrows analyzes the first clause of MCL 762.8, the Supreme Court specifically
noted with respect to the second clause that there had been no argument as to whether the
defendant “ ‘intended’ for any effects of his offense to be felt” in the county that he was charged.
McBurrows, ___ Mich at ___; slip op at 17. Thus, McBurrows can provide no guidance with
respect to application of that portion of the statute.
5
  Notably, the latter clause of MCL 762.8 was not added until 2013, following a ruling by our
Supreme Court that the statute did not “contemplate venue for prosecution in places where [only]
the effects of [an] act are felt.” MCL 762.8 as amended by 2013 PA 128; People v Houthoofd,
487 Mich 568, 584; 790 NW2d 315 (2010). Houthhoofd was clear that an act must have actually
occurred in a specific county for that county to have jurisdiction. Houthoofd, 487 Mich at 584.


                                                -3-
effect in that county, and indeed, by selling the controlled substances to Thomas and his
companions, defendant intended that effect. With that in mind, we need not address the
argument that McBurrows does not apply to cases premised on aiding and abetting, nor the
argument that the trial court would be obligated to transfer venue had venue actually been
improper.

      Affirmed.




                                                       /s/ Christopher M. Murray
                                                       /s/ Patrick M. Meter
                                                       /s/ Karen M. Fort Hood




                                           -4-
