People v. Beebe, Docket No. 23185--6

• Decision Date: 20 July 1976
• Docket Number: Docket No. 23185--6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Melvin BEEBE, Defendant-Appellant. 70 Mich.App. 154, 245 N.W.2d 547
• Court: Court of Appeal of Michigan — District of US

Page 547

245 N.W.2d 547

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Melvin BEEBE, Defendant-Appellant.

Docket No. 23185--6.

70 Mich.App. 154, 245 N.W.2d 547

Court of Appeals of Michigan.

July 20, 1976.

Released for Publication Oct. 1, 1976.

[70 MICHAPP 155] Leonard C. Battle, Midland, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward G. Durance, Pros. Atty., for plaintiff-appellee.

Before GILLIS, P.J., and CAVANAGH and McGREGOR, JJ.

McGREGOR, Judge.

The defendant was charged in one complaint and warrant with armed robbery, [70 MICHAPP 156] M.C.L.A. § 750.529; M.S.A. § 28.797 (Count I), and receiving stolen property in excess of $100, M.C.L.A. § 750.535; M.S.A. § 28.803 (Count II), and, in another complaint and warrant, with breaking and entering with intent to commit a larceny, M.C.L.A. § 750.110; M.S.A. § 28.305. The two cases were tried together, but the court granted a directed verdict on Count II of the first case, at the close of plaintiff's proofs. On October 22, 1974, the defendant was found guilty by a Midland County Circuit Court jury of armed robbery and of breaking and entering. Having been subsequently sentenced to a term of from 8 to 15 years in prison for the armed robbery conviction, and to a term of from 5 to 10 years for the breaking and entering conviction, defendant now appeals of right.

On appeal, defendant raises three claims of error. His first contention is that the trial court committed reversible error by denying a defense request for a directed verdict on the armed robbery charge. The request was made at the close of plaintiff's case.

Testimony by the victims, Carl and Vivian Manaeke, comprised plaintiff's foundation for the armed robbery charge. Carl Manaeke, the owner of Krystal's Market in Midland, Michigan, testified that on June 28, 1974, at about 7:45 p.m., he was with his wife in the store. At that time a man, whom Manaeke identified as the defendant, came into the store to purchase several cases of beer. Defendant asked for five cases, and Manaeke went to the walk-in cooler in the back of the store. The defendant moved his car up to the steps so that Mr. Manaeke would not have to carry the cases as far. Manaeke stated that he put the beer in the trunk of the car as a service for the defendant.

After he had put four cases in the trunk and [70 MICHAPP 157] had come back from the cooler with the last case, he asked his wife if defendant had paid for the beer. She replied that he had not. Mr. Manaeke then told the defendant that he owed them forty-some dollars. At that point, defendant pulled a revolver and pointed it at Manaeke. At this time, the last case of beer was sitting on the counter. Mr. Manaeke testified that defendant was ten feet away from him and that defendant said 'We'll call it even,' or something like that. Defendant then left the store and drove off in the car.

Manaeke testified that the price of the beer was $44.70, as reflected by a sales slip. It accounted for five cases of beer plus two cartons of cigarettes. The defendant had taken the two cartons of cigarettes from a self-serve area, but Manaeke did not know that until his wife told him after the four cases of beer had been put in the trunk. Manaeke testified that he took two cases at a time out to defendant's car. When defendant opened the trunk, he had to use a screwdriver to do so. Defendant left the fifth case of beer on the counter after he had pulled the gun on Manaeke. Manaeke testified that he always loaded large quantities of beer for a customer as a service before the shopper had paid for it. Vivian Manaeke corroborated her husband's testimony.

On appeal, defendant argues that this evidence was insufficient as a matter of law to present a prima facie case of armed robbery. The essential elements of armed robbery are:

'(1) that an assault was committed by defendant upon the complainant, (2) that the defendant feloniously took any property which might be the subject of larceny from the complainant or in his presence, (3) that the defendant was armed with a weapon described in the statute.' People v. Styles, 61 Mich.App. 532, 534, [70 MICHAPP 158] 233 N.W.2d 70, 71 (1975). See also People v. Needham, 8 Mich.App. 679, 683, 155 N.W.2d 267 (1967).

Defendant contends that plaintiff's proofs failed to establish a 'felonious taking'. Defendant bases this contention on a claim that defendant's alleged taking of property occurred before the alleged assault and, therefore, the taking was not accomplished by means of an assault. Possession, according to defendant, was severed when Mr. Manaeke placed the beer in the trunk of defendant's car. In response, plaintiff describes the evidence as depicting a single transaction in which 'the real severing of possession from the owner (Mr. Manaeke) was accomplished by placing him in fear of violence by use of the gun.'

Defendant's appeal presents a factual setting of first impression. Facts similar to the instant case have resulted in a divergence of authority in other jurisdictions. The general rule is that an assault must be contemporaneous with a taking in order to support a charge of armed robbery. 2 Wharton's Criminal Law and Procedure, § 559, p. 263, People v. Sanders, 28 Mich.App. 274, 276, 184 N.W.2d 269 (1970). Decisions in other jurisdictions have depended on whether the alleged robbery was viewed as an ongoing transaction or was broken up into its component acts. The majority view has favored the broader 'transaction' perspective. ¹ A minority of courts have required defendant's use of [70 MICHAPP 159] force to precede or occur simultaneously with the physical taking of the property. ²

We find that relevant Michigan cases and the inherent logic of the majority view compel us to reject defendant's argument here. Regardless of their perspective courts have adopted language from Commonwealth v. Homer, 235 Mass. 526, 533, 127 N.E. 517, 520 (1920) as a definition of 'presence of possession':

'A thing is in the presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.'

See Perkins on Criminal Law (2d ed.), pp. 281--82, People v. Moore, 13 Mich.App. 320, 323, 164 N.W.2d 423 (1968), Lv. den. 381 Mich. 796 (1969). Further, actual physical possession has not been required. The question is whether, at the time of defendant's use of force, the victim's 'right to possession was * * * greater than that of his assailant'. People v. Needham, supra, at 685, 155 N.W.2d at 269.

Here, Carl Manaeke's act of placing four cases of beer in the trunk of defendant's car did not sever his right to possession. If defendant had not intervened with force, he could have and, presumably, would have retained his property. The stolen goods were sufficiently within the victim's control that he could have recovered them if he had not been overcome by fear.

In People v. Sanders, supra, we made an analogous holding. Defendant in Sanders appealed a plea of guilty to a charge of assault with intent [70 MICHAPP 160] to rob and steal being armed, M.C.L.A. § 750.89; M.S.A. § 28.284. The record revealed that the defendant had followed the victim to her house and had, while armed, removed a bag of money from her bedroom by stealth. After he was discovered, he took her purse from the living room and fled. In doing so, he fired a shot into the air to prevent the victim's grandson from pursuing him.

The Court noted that '(t)he general rule is that an assault must be concomitant with the taking' and concluded that:

'A close reading of the cases from other jurisdictions reveals no valid basis for isolating the incidents of the entire event when the taking is not effectively completed until after the assault. Hermann v. State (1960), 239 Miss. 523, 123 So.2d 846. It is the opinion of this Court that the incident of the taking must be viewed in its totality in order to ascertain the intent of the defendant when the assault occurs.' 28 Mich.App. at 276--277, 184 N.W.2d at 270.

We find this view equally as applicable and cogent...