People v. Ballenberger

• Decision Date: 17 January 1974
• Docket Number: No. 2,Docket No. 16842,2
• Citation: 51 Mich.App. 353,214 N.W.2d 742
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James BALLENBERGER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 742

214 N.W.2d 742

51 Mich.App. 353

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James BALLENBERGER, Defendant-Appellant.

Docket No. 16842.

Court of Appeals of Michigan, Division No. 2.

Jan. 17, 1974.

Released for Publication Feb. 19, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and CARLAND,* JJ.

CARLAND, Judge.

Defendant was convicted by a jury of attempted breaking and entering of an occupied building with intent to commit larceny, M.C.L.A. §§ 750.92, 750.110; M.S.A. §§ 28.287, 28.305, and a sentence of from three to five years was imposed.

Police officers upon investigating after hearing the sound of glass being shattered discovered the defendant standing within a foot or two of the IRS Building in the City of Adrian. The defendant failed to heed orders to stop but immediately ran from the scene, In his attempt to escape, the defendant jumped at least one chain link fence. However, the officer was able to keep the defendant in view and he was finally apprehended some distance from the building in question. Upon returning to the scene, the broken window in the IRS Building was discovered. Defendant's hands were discovered to have been cut and the officer expressed a belief that such cuts did not come from a fence but later admitted that this was possible. The officer also expressed an opinion that because of the short lapse of time between the sound of broken glass and the observation of the defendant that it would have been impossible for any person other than defendant to have broken the glass. The defendant in attempting to explain his presence at the scene gave several varying inconsistent stories.

Defendant in denying his guilt testified that he heard the crash and saw somebody running; that he walked to the scene and saw 'a bunch of stuff laying on the ground'; that he fled because of fear that his probation would be revoked because he had been drinking; that he probably cut his hands while jumping the fence; that the strange stories told by him came as the result of fright.

On appeal, the defendant maintains that as a matter of law the evidence was insufficient to present a question of fact for the jury as to the larcenous intent and that such evidence was equally insufficient to support a finding by a jury of such intent. While no one saw defendant break the window, he was there when it was broken. He fled upon being ordered to halt. He gave the police false stories. His hands were cut and if the jury believed that this came about as the result of breaking the window, and it apparently did, the record contains evidence which if believed would establish the crime charged.

The weight and credibility of the testimony of witnesses is a jury question and it is for the jury to resolve any conflicts therein, People v. Moss, 16 Mich.App. 295, 167 N.W.2d 788 (1969); People v. McKeller, 30 Mich.App. 135, 185 N.W.2d 905 (1971); People v. Clark, 34 Mich.App. 70, 190 N.W.2d 726 (1971).

In criminal cases, this Court does not sit as a reviewing jury and hear cases De novo. Where evidence is presented at trial which would justify the jury verdict, that verdict is final, People v. Harper, 43 Mich.App., 500, 509, 204 N.W.2d 263, 269 (1972). Moreover, circumstantial evidence and reasonable inferences drawn therefrom can be sufficient to uphold the conviction, People v. Brown, 42 Mich.App. 608, 202 N.W.2d 493 (1972), and People v. Peace, 48 Mich.App. 79, 86, 210 N.W.2d 116, 120 (1973).

Defendant further maintains that the sentencing judge erred when he based his sentence upon his belief that during the trial the defendant had committed perjury, a crime for which the defendant had not been convicted. The defendant bases this contention upon the following statement made by the court during the sentencing process:

'You were tried by a jury in that case. It was very apparent to the court and the attitude of the jury and from their final verdict that they simply didn't believe you on the witness stand. In other words, they thought you were committing perjury. I agree with that assessment made by the jury. I don't think you were telling us the truth during the course of that trial at all. So in addition to adding this particular offense to your record, as far as the court's concerned, you added to your culpability by telling a falsehood during the course of the trial. If the jury had bought even a portion of your story, they certainly wouldn't have convicted you.'

While the statement was unfortunate, this record does not support a finding that the defendant was prejudiced thereby. Under People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972), a minimum sentence of three years and four months might have been imposed. Failure to impose the maximum minimum sentence negates any claim that the stated beliefs of the judge influenced the sentence and thereby...