People v. Bostic, Docket No. 53770

• Decision Date: 17 September 1981
• Docket Number: Docket No. 53770
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Malchia BOSTIC, Defendant-Appellant. 110 Mich.App. 747, 313 N.W.2d 98
• Court: Court of Appeal of Michigan — District of US

Page 98

313 N.W.2d 98

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Malchia BOSTIC, Defendant-Appellant.

Docket No. 53770.

110 Mich.App. 747, 313 N.W.2d 98

Court of Appeals of Michigan.

Sept. 17, 1981.

Released for Publication Dec. 22, 1981.

[110 MICHAPP 748] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the people.

Pamela E. Griffin, Detroit, for defendant-appellant on appeal.

Before J. H. GILLIS, P. J., and BASHARA and SANBORN, ^* JJ.

PER CURIAM.

On November 27, 1979, the home of Mr. Joe Bogan was broken into and several articles of clothing were taken, including a pair of blue jeans. Shortly thereafter, Mr. Bogan found most of the stolen articles in the garage of his neighbor, Zachary Merritt. On the following day, Mr. Bogan observed Merritt, accompanied by defendant, walking down the street in front of his home. Mr. Bogan had not previously known the defendant. He noticed that defendant was wearing the blue jeans that had been stolen from his home the day before.

Mr. Bogan called Merritt over to him and defendant followed. He asked defendant where the blue jeans had come from. An argument ensued between defendant and Mr. Bogan.

The testimony at trial conflicted at this point. Mr. Bogan testified that defendant pulled a gun out of a pocket and said " * * * get back, man, or I'll shoot". Mr. Bogan stepped back and went into his house. His wife called the police.

Directly contradicting this, Merritt testified that Mr. Bogan grabbed defendant, that no gun was pulled and that defendant just broke away and [110 MICHAPP 749] went to Merritt's house to call the police. Defendant did not testify at trial.

Defendant was convicted by a jury of felonious assault. M.C.L. § 750.82; M.S.A. § 28.277, and violation of the felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2). He received a mandatory 2-year sentence for the felony-firearm conviction and a sentence of 2 to 4 years for the felonious assault conviction. He brings this appeal by right.

Defendant argues that the prosecutor should not have been allowed to elicit from Merritt the fact that Mr. Bogan found some of his property in Merritt's garage. He claims that the testimony improperly presented to the jury evidence of a prior bad act by the defendant, that is, the breaking and entering of Mr. Bogan's home. We disagree for a number of reasons.

First, no evidence was introduced to suggest that defendant was involved in the break-in. The break-in was linked to Merritt, not defendant. Second, the evidence was a necessary part of the res gestae of the felonious assault. Res gestae are circumstances, facts and declarations which so illustrate and characterize the principal fact as to place it in its proper effect. People v. Castillo, 82 Mich.App. 476, 266 N.W.2d 460 (1978). The res gestae has been referred to as the "complete story". See People v. Delgado, 404 Mich. 76, 83, 273 N.W.2d 395 (1978). The testimony of Merritt which revealed that some of Mr. Bogan's property was found in Merritt's garage was necessary to show Mr. Bogan's state of mind. It explained why Mr. Bogan would notice a pair of blue jeans worn by a complete stranger and why he would demand that the stranger tell him where the blue jeans came from. It was this argument which led to the felonious assault. The evidence was a necessary part...