People v. Benevides, Docket No. 25461

• Citation: 71 Mich.App. 168,247 N.W.2d 341
• Decision Date: 08 September 1976
• Docket Number: Docket No. 25461
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rene BENEVIDES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 341

247 N.W.2d 341

71 Mich.App. 168

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rene BENEVIDES, Defendant-Appellant.

Docket No. 25461.

Court of Appeals of Michigan.

Sept. 8, 1976.

Released for Publication Dec. 14, 1976.

Larry L. Emmert, Wyandotte, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., Charles P. Kellett, Asst. Pros. Atty., for plaintiff-appellee.

before J. H. GILLIS, P.J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

The defendant was jury convicted of breaking and entering an occupied dwelling on February 11, 1975, M.C.L.A. § 750.110; M.S.A. § 28.305, and sentenced to a term of from five to fifteen years.

For a clear understanding of the issues, a brief statement of fact is essential. While the owner of the house broken into was on vacation on December 3, 1974, it was being watched by residents who lived two doors away. At about 9:30 that evening neighbors observed a pickup truck in the drive, lights being turned on and the side door open. They called the police, but the intruders left before they arrived. The neighbor followed the pickup in his own car for about three miles, where it stopped in the parking lot of a donut shopt. The police found two men there, one standing and the other underneath the vehicle, apparently attempting to make repairs. Jewelry taken from the former and a television set in the truck were identified as articles missing from the home. A search of the defendant, the man beneath the pickup, disclosed a key ring and a silver dollar which were also identified by the homeowner.

The defendant's companion pled guilty to the charge and claimed that a Ronnie Olson was with him at the time of the break-in and had disappeared. His story was told after several conversations with the defendant. He admitted that he perjured himself at the time the information was given to the police, but insisted that he had given the coin and key chain to the defendant before defendant attempted to make the alleged repairs. The defendant did not take the stand in his own defense during the trial.

The trial judge denied a motion for a directed verdict. Hence, the first issue is whether or not this action was proper.

The trial judge, in considering such a motion, must first decide if there is evidence from which the jury can reasonably infer all the elements of the charged crime. People v. Compton, 23 Mich.App. 42, 178 N.W.2d 133 (1970); People v. Kyllonen, 66 Mich.App. 467, 239 N.W.2d 410 (1976).

On appeal, the reviewing court in passing on a motion for directed verdict must: (1) consider only the evidence which has been introduced at the time the motion was made; (2) view that evidence in the light most favorable to the prosecutor; and (3) determine whether that evidence, if creditable and believed, would justify a reasonable man in concluding that all the elements of the crime were established beyond a reasonable doubt. People v. Royal, 62 Mich.App. 756, 233 N.W.2d 860 (1975); People v. Fudge, 66 Mich.App. 625, 239 N.W.2d 686 (1976).

The elements of breaking and entering an occupied dwelling are: (1) the breaking and entering; of (2) an occupied dwelling; with (3) felonious intent. People v. D'Argis, 44 Mich.App. 186, 188, 205 N.W.2d 19 (1972); People v. Keatts, 54 Mich.App. 618, 620, 221 N.W.2d 455 (1974).

It is clear from the above statement of facts that a crime was committed. The truck was traced directly from the scene to the parking lot where only the two men were found with stolen goods in their possession. Therefore, evidence was adduced at the trial relating to each of the elements.

The defendant, however, contends that no evidence was produced which identified him as one of the perpetrators of the crime. True, it was circumstantial in nature, but a jury conviction may rest on such evidence. People v. Ballenberger, 51 Mich.App. 353, 356, 214 N.W.2d 742 (1974).

Further, it is within the realm of possibility that the jury based the verdict on an aiding and abetting theory provided in the jury instructions, M.C.L.A. § 767.39; M.S.A. § 28.979. Such an instruction is entirely proper when there is evidence that more than one person was involved in the commission of a crime, and where there is evidence that defendant's role in the commission thereof may have been something less than direct participation in the original wrongdoing. People v. Ware, 12 Mich.App. 512, 163 N.W.2d 250 (1968); People v. Wilborn, 57 Mich.App. 277, 280, 225 N.W.2d 727 (1975). Therefore, a trial judge was correct in denying the motion for a directed verdict.

The second issue raised by defendant is more complex. He contends that the following excerpt from the charge was prejudicial: 'I charge you also, ladies and gentlemen of the jury, that you may properly infer that one in possession of recently stolen property was the thief. But in order for possession to be grounds for such inference, it must be exclusively recent and involve a conscious assertion of property by the defendant.'

After the charge to the jury was completed the following colloquy took place between the court and the attorneys:

'(The Court): Mr. McMahon, any additions or deletions to the charge?

'Mr. McMahon (Prosecutor): No, your honor. The people are satisfied with the charge of the Court.

'The Court: Mr. Solomon, any additions or deletions to the charge?

'Mr. Solomon (Defense Counsel): No. Defense is satisfied, your honor.'

This statement of satisfaction on the part of defense counsel brings the issue within the purview of GCR 1963, 516.2 and People v. Wheat, 55 Mich.App. 559, 563, 223 N.W.2d 73, 75 (1974):

'Further, the alleged error relating to the instruction is not before this Court. Defense counsel not only failed to object to the instruction in the court, but he affirmatively expressed satisfaction with the charge.'

Also see People v. Cardenas, 21 Mich.App. 636, 639, 176 N.W.2d 447 (1970), Lv.den., 383 Mich. 820 (1970).

Nevertheless, it has been said on many occasions that the jury verdict may be set aside if the instruction has resulted in a miscarriage of justice. However, even if we assume that the instruction was incorrect, it will not occasion manifest injustice unless it pertains to a basic and controlling issue in the case. People v. Neumann, 35 Mich.App. 193, 196, 192 N.W.2d 345 (1971).

Accordingly, the question is whether a person can be convicted of breaking and entering with the evidence as circumstantial as in the case at bar.

The disputed charge follows the law set forth in 4 Gillespie (2d edition) Michigan Criminal Law and Procedure, 2271, p. 2484:

'Possession of stolen property, immediately subsequent to a larceny, may sometimes be almost conclusive evidence of guilt, but the presumption weakens with the time which has elapsed, and may scarcely arise at all if others besides the defendant have had equal access to the place where it was discovered, but the unexplained possession of stolen property is some evidence of guilt.'

Fortunately, we have several decisions in Michigan involving breaking and entering and possession of stolen goods which will be of assistance in arriving at a proper conclusion.

One of the leading cases is People v. McDonald, 13 Mich.App. 226, 236--237, 163...