People v. Ainsworth

• Decision Date: 07 December 1992
• Docket Number: Docket No. 145312
• Citation: 197 Mich.App. 321,495 N.W.2d 177
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Royal Keith AINSWORTH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 177

495 N.W.2d 177

197 Mich.App. 321

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Royal Keith AINSWORTH, Defendant-Appellant.

Docket No. 145312.

Court of Appeals of Michigan.

Submitted Sept. 24, 1992, at Lansing.

Decided Dec. 7, 1992, at 10:40 a.m.

Released for Publication Feb. 17, 1993.

Charles W. Simon, III, Edmore, for defendant-appellant.

Before MICHAEL J. KELLY, P.J., and SHEPHERD and FITZGERALD, JJ.

SHEPHERD, Judge.

Defendant pleaded guilty in Ionia County of larceny from a person, M.C.L. Sec. 750.357; M.S.A. Sec. 28.589, and was sentenced to three to ten years in prison. Defendant appeals as of right and argues that his constitutional right against double jeopardy was violated because his plea of guilty of larceny from a person in this case arose out of the same transaction that resulted in his prior pleas of guilty of receiving and concealing stolen property and stealing or retaining a financial transaction device in Livingston County.

Defendant's guilty plea in this case arose from an incident that occurred in Ionia County on September 16, 1990, when Charles Hoffman was attacked and robbed while he was sleeping in a parked car. On October 2, 1990, defendant was arrested in Livingston County because he had in his possession the wallet, credit cards, and checks belonging to Hoffman. Defendant was charged with the crimes of receiving and concealing stolen property, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803, and stealing or retaining a financial transaction device, M.C.L. Sec. 750.157n; M.S.A. Sec. 28.354(14). He pleaded guilty of both offenses and was sentenced to ninety days in jail for the receiving and concealing offense and one to four years in prison for the stealing or retaining a financial transaction device offense.

Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. U.S. Const. Am. V; Const. 1963, art. 1, Sec. 15. These guarantees protect a defendant against successive prosecutions for the same offense and multiple punishments for the same offense. Ashe v. Swenson, 397 U.S. 436, 450-454, 90 S.Ct. 1189, 1197-1200, 25 L.Ed.2d 469 (1970); People v. Bewersdorf, 438 Mich. 55, 72, 475 N.W.2d 231 (1991). The validity of successive prosecutions is determined by the same-transaction test. People v. White, 390 Mich. 245, 258, 212 N.W.2d 222 (1973). This test requires the prosecution, except in the most limited circumstances, to join at trial all the charges against a defendant arising out of a single criminal act, occurrence, episode, or transaction. Id., at p. 259, 212 N.W.2d 222; Crampton v. 54-A Dist. Judge, 397 Mich. 489, 501-502, 245 N.W.2d 28 (1976); People v. Greenberg, 176 Mich.App. 296, 305, 439 N.W.2d 336 (1989). Where one or more of the offenses does not have a specific criminal intent as an element,

the criterion is whether the offenses are part of the same criminal episode, and whether the offenses involve laws intended to prevent the same or similar harm or evil, not a substantially different, or a very different kind of, harm or evil. [Crampton, supra, at p. 502, 245 N.W.2d 28.]

M.C.L. Sec. 750.357; M.S.A. Sec. 38.589 provides in relevant part:

Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than ten years.

The elements of larceny are:

(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with felonious intent, (4) the subject matter must be the goods or personal property of another, (5) and the taking must be without the consent of and against the will of the owner. [People v. Jones, 106 Mich.App. 429, 432, 308 N.W.2d 243 (1981).]

Larceny is a specific intent crime. People v. Lerma, 66 Mich.App. 566, 239 N.W.2d 424 (1976).

The receiving and concealing stolen property statute, M.C.L. Sec. 750.535(1); M.S.A. Sec. 28.803(1), provides, in pertinent part:

A person who buys, receives, possesses, conceals or aids in the concealment of stolen, embezzled, or converted money, goods, or property knowing the money, goods, or property to be stolen, embezzled, or converted, if the property purchased, received, possessed, or concealed exceeds the value of $100.00, is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00 or both.

The elements of the crime of receiving and concealing stolen property of a value exceeding $100 are:

(1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with knowledge of the defendant that the property was stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen. [People v. Hooks, 139 Mich.App. 92, 96, 360 N.W.2d 191 (1984).]

This Court has held that receiving and concealing stolen property is not a specific intent crime. People v. Watts, 133 Mich.App. 80, 83, 348 N.W.2d 39 (1984); People v. Flowers, 186 Mich.App. 652, 653-654, 465 N.W.2d 43 (1990).

M.C.L. Sec. 750.157n(1); M.S.A. Sec. 28.354(14)(1), as amended by 1987 P.A. 276, effective March 30, 1988, provides in pertinent part:

(1) A person who steals, knowingly takes, or knowingly removes a financial transaction device from the person or possession of a deviceholder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the deviceholder, is guilty of a felony.

M.C.L. Sec. 750.157m(f)(ii); M.S.A. Sec. 28.354(13)(f)(ii) defines a "financial transaction device" as a credit card. Although this statute has yet to be interpreted, we conclude that the offense of stealing or retaining a financial transaction device constitutes a specific intent crime, given that knowledge is an essential element of this crime.

In this case, the same-transaction test is applicable, because one of the offenses is not a specific intent crime. Crampton, supra; Flowers, supra. While larceny from a person and stealing or retaining a financial transaction...