People v. Brewer, Docket No. 19032

• Decision Date: 24 April 1974
• Docket Number: Docket No. 19032,No. 2,2
• Citation: 231 N.W.2d 375,60 Mich.App. 517
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Guy Allen BREWER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 375

231 N.W.2d 375

60 Mich.App. 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Guy Allen BREWER, Defendant-Appellant.

Docket No. 19032.

Court of Appeals of Michigan, Division No. 2.

April 24, 1974.

Released for Publication July 24, 1975.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BASHARA and KAUFMAN, JJ.

KAUFMAN, Judge.

The defendant, Guy Allen Brewer, was convicted by a jury of receiving or concealing stolen property. M.C.L.A. § 750.535; M.S.A. § 28.803. The stolen property in question was a 1973 Ford Maverick automobile. Defendant appeals his conviction as a matter of right.

Defendant's first claim of error concerns the trial court's instruction to the jury regarding defendant's knowledge that the car was stolen. In charging the jury on defendant's theory of the case, the court originally made the following statement:

'The theory of the defendant's case is while the defendants may have been in the area and may have been arrested by the Deputy, Ronald Winkler, that they had no knowledge the car was stolen which is an essential element of this crime, that they did have to have knowledge and aid in the concealment of such car.'

At the conclusion of the court's charge, while the jury was out of the room, defense counsel objected to the court's presentation of the defendant's theory of the case, stating:

'In my closing argument it was evident I indicated in fact there was knowledge this particular motor vehicle was stolen. It is replete on the record. Our theory is mere presence is not enough to convict. You indicated our theory was they did not have knowledge the vehicle was stolen.'

After convincing himself through further discussion that defense counsel admitted the element of knowledge and only disputed whether defendant had aided or counselled in the receiving and concealing, the court called back and re-instructed the jury on defendant's theory of defense 'Members of the jury, the Court has been advised by counsel that it possibly misspoke the theory of the defendants. I want to make clear in your minds what the theory was, the theory of the defendants, and the court initially said that the defendants' position was that they did not have knowledge that the property in question had been stolen--that the car had been stolen. It is actually the theory of the defendants while they may have had knowledge, they did not aid in the concealment of said car. There is a distinction there. They may have had knowledge the car was stolen, but did not aid in concealment and, of course, this is an essential element of that offense which must be proven beyond a reasonable doubt.'

Defendant now argues this instruction conceded an essential element that was not supported by the evidence, to wit: knowledge that the property was stolen; and, that the court erred in re-instructing even though it was requested by defendant's counsel. We cannot agree. This is not a case where the trial judge has instructed that an essential element of the criminal offense exists as a matter of law. People v. Reed, 393 Mich. 342, 351, 224 N.W.2d 867 (1975). Rather, the trial judge here merely restated defendant's theory and, indeed, modified the defense position so as not to evidence a total acquiescence in the element of knowledge. A close reading of the second charge evidences little more than a statement of an alternative theory, that while defendant 'may' have had knowledge, he did not aid in concealment. We do not interpret the charge as judicial invasion into the province of the jury to determine all elements of an offense which was disapproved in People v. Reed, supra.

The only basis on which the court could have refused defendant's request to recharge would have been if there were no evidence tending to establish defendant had knowledge the car was stolen. People v. Knox, 364 Mich. 620, 111 N.W.2d 828 (1961); People v. Ware, 12 Mich.App. 512, 163 N.W.2d 250 (1968). There was sufficient circumstantial evidence brought forth by the prosecution to allow the jury to infer that defendant had knowledge the car was stolen. The stolen vehicle was spotted by an independent witness within an hour after its theft and the witness kept up a surveillance until a group of men returned with tools; a police officer responding to the witness's call went to the site and five men fled from the garage; the officer gave chase and returned with five men; defendant was identified as one of those men and his palm print was found on the stolen vehicle. The vehicle had suffered the loss of its trunk lock, the hood was up, spark wires were pulled and the fuel line and battery cables were disconnected. Evidence of defendant's guilty knowledge can be collected from all of the circumstances. People v. Tantenella, 212 Mich. 614, 180 N.W. 474 (1920), People v. Keshishian, 45 Mich.App. 51, 205 N.W.2d 818 (1973). Possession and use of stolen merchandise, near in time to its theft, is some evidence of guilty knowledge. People v. McLott, 55 Mich.App. 198, 222 N.W.2d 178 (1974). Defendant's evasive action by fleeing the scene is some evidence of guilty knowledge. People v. Hutton, 50 Mich.App. 351, 213 N.W.2d 320 (1973). These factors were sufficient to support the charge as given.

Defendant's second assignment of error arises from the trial court's refusal to direct a verdict at the close of the people's proofs. In People v. Hodo, 51 Mich.App. 628, 639, 215 N.W.2d 733 (1974), this Court set forth the standard to be followed in determining whether a motion for...