People v. Benjamin

• Decision Date: 20 November 1980
• Docket Number: Docket No. 47024
• Citation: 300 N.W.2d 661,101 Mich.App. 637
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rhonda BENJAMIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 661

300 N.W.2d 661

101 Mich.App. 637

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rhonda BENJAMIN, Defendant-Appellant.

Docket No. 47024.

Court of Appeals of Michigan.

Nov. 20, 1980.

Released for Publication Jan. 29, 1981.

Myron E. Sanderson, Jackson, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and BRONSON and CYNAR, JJ.

CYNAR, Judge.

Following a jury trial, defendant was found guilty of carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, and acquitted of a charge of aiding and abetting the crime of larceny in a building, M.C.L. § 750.360; M.S.A. § 28.592. Defendant was sentenced to four to seven years imprisonment and now appeals as of right.

Barbara Gumbert, manager of the Bottom Half Clothing Store in the Westwood Mall in Jackson, received a shipment of 35 Huckapoo shirts on February 14, 1979. After she unpacked and ticketed them, they were put on special hangers and placed on a rack near the front entrance of the store. No other mall stores carried that type of shirt. At approximately 8:30 p. m., defendant and a companion, later identified as Marketta Landrum, entered the store and began looking at merchandise, including the shirts. They both tried on jackets, and defendant asked Ms. Gumbert to put one on hold. Ms. Gumbert went to the back room and, when she returned, defendant filled out a form in order to purchase the jacket through the Community Action Program. While she was away from the merchandise area, there was no other salesperson on the floor assisting her, and defendant and Landrum were the only customers in the store. Ms. Gumbert had given the two women store bags, upon their request, and, after a brief conversation, they left. When she began counting the merchandise, she noticed six Huckapoo shirts and hangers missing.

After the mall security was alerted, Ms. Gumbert and security officer Jim Schmall went to Kinney's shoe store and waited for the two women to come out. They followed them to the mall entrance, and another security officer, John Rogus, stopped them at the entrance. Ms. Gumbert asked Marketta Landrum whether she could look inside the Bottom Half bag she was carrying, and, when she opened it, she saw the shirts. Landrum denied taking them, and defendant "didn't see why she had to be with her at the time".

After the police arrived, they escorted defendant, Landrum, and Ms. Gumbert into a room inside Alladin's Castle. One of the officers, Jackson County Deputy Norman Purucker, found a razor knife and a jackknife in defendant's purse. The jackknife was open and was approximately eight to ten inches long. Only two of the six shirts found in the bag still had tags. Ms. Gumbert admitted, during cross-examination, that she did not see the jackknife until it was no longer in defendant's purse.

Mark Williston, assistant manager at Kinney's shoe store, testified that, after he finished waiting on the defendant, he checked one of the handbags at which she had been looking because it felt "heavier than usual". When he opened it, he found plastic hangers with the logo "Bottom Half" on the top of the hanger. Williston left the store and, after he spoke with the salesperson at the Bottom Half, went to Alladin's Castle. As he turned the bag over to deputy Purucker, he saw him holding a jackknife. He later discovered the missing shirt tags in his store.

James Schmall observed the Jackson County deputy search the two women and take two knives from one of their purses. He did not remember, however, from which purse they were taken.

Deputy Purucker testified that, after he arrived at the mall, he asked defendant and Landrum their names and addresses. He then asked defendant for permission to search a purse she was holding, and she consented after the officer had advised her that she could refuse his request. He found a large, pearl-handled jackknife and a Stanley utility knife. When he showed her the knives, she said, "I carry them when I'm walking down Frances Street, never know when I might need them". He did not give her a Miranda ¹ warning prior to her making the statement, and he denied that he asked her any questions about the alleged theft. He also denied that he had any reason to suspect that defendant was carrying any concealed weapon when he searched her purse. Finally, he characterized her statements as spontaneous since she made them as soon as he held up the knives.

Jackson County Deputy Sheriff William Tedder had accompanied deputy Purucker to the mall. He corroborated Purucker's testimony regarding the discovery of the knives in defendant's purse and her statements regarding why she carried them.

Marketta Landrum denied that she and defendant had any prior conversation about stealing anything at the mall and testified that she did not tell defendant that she took the shirts.

The trial court had denied defendant's motion to dismiss the aiding and abetting count made at the close of the prosecution's case since there was "some evidence" from which a reasonable person could conclude that defendant acted as a decoy in order to assist her companion.

The trial court had also ruled that, based upon the consensual nature of the search, the knives were admissible into evidence. In addition, the court ruled that defendant's statements were voluntary since they were not made in response to any police interrogation and, therefore, Miranda was inapplicable.

Defendant first argues that the trial court erred in denying defendant's motion to dismiss the charge of carrying a concealed weapon (CCW). Defendant claims that the information was deficient in failing to specify that the knives found in defendant's purse were carried for either an offensive or defensive purpose. Where statutory language is used in an information in charging an offense, it is sufficient if it adequately informs a defendant of "the nature and character" of the charged offense. People v. Lightstone, 330 Mich. 672, 48 N.W.2d 146 (1951); see also, People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973). The language used in the information adequately informed defendant of the nature and character of the charged offense.

We further find no violation of defendant's rights to equal protection and due process of law arising from the prosecution's decision to charge defendant with larceny in a building, a felony, as opposed to simply larceny, a misdemeanor. The decision to charge defendant with the former was a proper exercise of prosecutorial discretion and not constitutionally infirm. People v. Evans, 94 Mich.App. 4, 287 N.W.2d 608 (1979); People v. Birmingham, 13 Mich.App. 402, 164 N.W.2d 561 (1968).

As defendant's sentence was within permissible statutory limits, M.C.L. § 750.227; M.S.A. § 28.424 and M.C.L. § 769.10; M.S.A. § 28.1082, and since the trial court considered no improper criteria in sentencing defendant, we decline to disturb the trial court's decision with respect to the sentence meted out, and we likewise reject defendant's argument that her sentence constituted cruel and unusual punishment as being grossly disproportionate to the offense (CCW and second felony offender). People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); People v. Cox, 53 Mich.App. 314, 218 N.W.2d 843 (1974), lv. den. 392 Mich. 803 (1974).

Next, we address defendant's contention that the trial court erred in denying her motion for a directed verdict of acquittal on the charge of aiding and abetting the crime of larceny in a building. Defendant, as noted hereinbefore, ultimately was acquitted of that charge by the jury. Although not expressly argued by defendant in her brief on appeal, presumably the prejudice which she contends followed from the denial of the motion for a directed verdict was the consideration by the jury of a charge unwarranted by the proofs which substantially decreased defendant's chances of acquittal on any valid charge because of the possibility of a compromise verdict. People v. Vail, 393 Mich. 460, 464, 227 N.W.2d 535 (1975).

It is proper to deny a motion for a directed verdict of acquittal if, considering the evidence presented by the prosecution up to the time the motion is made in a light most favorable to the prosecution a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979); People v. Walker, 93 Mich.App. 189, 196, 285 N.W.2d 812 (1979). Our review of the prosecution's proofs convinces us that the trial court's ruling was correct. We find the case at bar on all fours with our Supreme Court's recent decision in People v. Thomas, 407 Mich. 936, 285 N.W.2d 658 (1979), although we note that the precise question raised by the defendant in Thomas was the sufficiency of the evidence in support of a verdict of guilty following a bench trial, whereas here, we review the lower court's denial of a motion for a directed verdict of acquittal.

The evidence offered during trial established that defendant and Marketta Landrum entered the Bottom Half Clothing Store and that, while Landrum was looking around other parts of the store, defendant talked to a clerk concerning a purchase and had the clerk fill out a form from the Community Action Program for the purchase of an item which required the clerk to go into the back room of the store and obtain the store's stamp. Sometime during this exchange, Landrum was able to take six shirts, hangers and all, and place them in her purse. Prior to leaving, both defendant and Landrum asked the clerk for empty Bottom Half bags which the clerk supplied to them. Defendant and Landrum then went to the Kinney shoe store where, while Landrum was looking at certain handbags in the store, defendant had a clerk fit her for a pair of shoes and again fill...