People v. Cavanaugh

• Decision Date: 19 October 1983
• Docket Number: Docket No. 61964
• Citation: 127 Mich.App. 632,339 N.W.2d 509
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Francis Everett CAVANAUGH, Defendant-Appellant. 127 Mich.App. 632, 339 N.W.2d 509
• Court: Court of Appeal of Michigan — District of US

Page 509

339 N.W.2d 509

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Francis Everett CAVANAUGH, Defendant-Appellant.

Docket No. 61964.

127 Mich.App. 632, 339 N.W.2d 509

Court of Appeals of Michigan.

Submitted Feb. 4, 1983.

Decided Aug. 1, 1983.

Released for Publication Oct. 19, 1983.

[127 MICHAPP 635] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Frank R. Del Vero, Pros. Atty., for the People.

Reck, Reck & Ashley, P.C. by Susan L. Reck, Howell, for defendant-appellant.

Before T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.

T.M. BURNS, Presiding Judge.

On December 3, 1981, defendant was convicted of attempted breaking and entering an unoccupied dwelling, M.C.L. Secs. 750.110, 750.92; M.S.A. Secs. 28.305, 28.287, and of being a fourth-time felony offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084, and was subsequently sentenced to from 3 to 15 years imprisonment. He appeals as of right.

During the early morning hours of August 5, 1981, two Michigan State Police Troopers and two Brighton City Police Officers received a report that a sporting goods store was being burglarized. After they arrived, they saw someone behind the store, running away from them. After a short chase, they caught the defendant. A door to the sporting goods store was standing open and both a nitrogen bottle and a motorcycle had been moved from their places. Nothing, however, was taken. Sometime previously, defendant had worked at the store.

Defendant testified, on the other hand, that he had been hitchhiking that night when a car passed and some teenage boys had spit at him. After [127 MICHAPP 636] defendant responded with an obscene gesture, the car stopped and the teenagers started chasing defendant. He then hid behind the sporting goods store. However, the police arrived immediately and arrested him.

Defendant was originally charged with breaking and entering an unoccupied dwelling with intent to commit larceny. M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. In addition to charging the jury on both breaking and entering and attempted breaking and entering, the trial judge instructed the jury on entering without breaking. M.C.L. Sec. 750.111; M.S.A. Sec. 28.306. However, he refused to instruct the jury on either larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592, or attempted larceny in a building. Defendant now claims that this refusal was erroneous.

We agree. In People v. Ora Jones, 395 Mich. 379, 390, 236 N.W.2d 461 (1975), the Supreme Court ruled that: "If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error." The trial court must always give an instruction for a necessarily lesser included offense and must give an instruction for a cognate lesser included offense if the evidence would support such a conviction. Id.

Larceny in a building is a cognate lesser included offense of breaking and entering with intent to commit larceny. People v. Brager, 406 Mich. 1004, 280 N.W.2d 826 (1979). The elements of larceny in a building are: 1) an actual or constructive taking, 2) an asportation, 3) with a felonious intent, 4) of someone else's property, 5) without that person's consent, 6) in a building. People v. Phebus, 116 Mich.App. 416, 323 N.W.2d 423 (1982); People v. Wilbourne, 44 Mich.App. 376, 378, 205 N.W.2d 250 (1973). In the present case, all six elements were [127 MICHAPP 637] shown. The sporting goods store is a building; the store's owner testified that not only did he not give anyone his consent to take anything but the property in the store was his. As such, the felonious intent can be inferred. The evidence also shows that a motorcycle was moved. Moving it supplied both the actual taking and the asportation elements. A person need not remove the item from the building to be guilty of this offense. People v. Fisher, 32 Mich.App. 28, 32-33, 188 N.W.2d 75 (1971). Abandoning the property is not a defense. People v. Bradovich, 305 Mich. 329, 9 N.W.2d 560 (1943); People v. Patricia Williams, 63 Mich.App. 531, 234 N.W.2d 689 (1975). Therefore, if defendant had originally been charged with and then convicted of larceny in a building, the evidence would have been sufficient to convict.

On the other hand, attempted larceny in a building is a necessarily lesser included offense of breaking and entering with intent to commit larceny. People v. Page, 73 Mich.App. 667, 252 N.W.2d 239 (1977). As such:

"The elements of attempted larceny in a building are: (1) felonious intent to commit a larceny; and (2) an overt act of going beyond mere preparation.

"Analyzing the elements, the felonious intent is the same, and the overt act can be the breaking and entering. The greater offense is completed upon the breaking and entering, while the lesser upon an overt act." People v. Keatts, 54 Mich.App. 618, 623, 221 N.W.2d 455 (1974) (Bashara, P.J., dissenting), rev'd 396 Mich. 803, 237 N.W.2d 474 (1976). ¹

[127 MICHAPP 638] Since it is a necessarily lesser included offense, the trial court was bound to give it without looking at the evidence. Ora Jones, supra, 395 Mich. 390, 236 N.W.2d 461; People v. Wilkinson, 76 Mich.App. 109, 256 N.W.2d 48 (1977).

Therefore, the issue is whether or not the failure to give the requested instructions for larceny in a building and for attempted larceny in a building is reversible rather than harmless error. We will analyze only the attempted larceny in a building question in this case.

The case closest to the present is People v. Trout, 95 Mich.App. 163, 290 N.W.2d 109 (1980). The defendant was charged with and convicted of breaking and entering an occupied dwelling. The trial court gave additional instructions for attempted breaking and entering, breaking and entering an unoccupied dwelling, and entering without breaking. However, it refused to give instructions for attempted larceny in a building, attempted breaking and entering an unoccupied dwelling, and attempted entering without breaking. Relying on People v. Herbert Ross, 73 Mich.App. 588, 252 N.W.2d 526 (1977), this Court found harmless error. In Herbert Ross, this Court had ruled:

"If the jury had doubts about defendant's guilt of the charged offense but believed him to be guilty of some wrongdoing they could have found him guilty of one of the lesser offenses. They did not do so. We must conclude, therefore, that the jury had no reasonable doubt as to the defendant's guilt of the charged offense." 73 Mich App 592.

See also People v. Meyers (On Remand), 124 Mich.App.[127 MICHAPP 639] 148, 335 N.W.2d 189 (1983); People v. Flinnon, 78 Mich.App. 380, 260 N.W.2d 106 (1977).

A few months after Trout was released, the Supreme Court decided People v. Richardson, 409 Mich. 126, 293 N.W.2d 332 (1980). ² There, the defendant was charged with and convicted of first-degree murder. The trial court had instructed additionally on second-degree murder and voluntary manslaughter but had refused to instruct on the reckless use of a firearm or on involuntary manslaughter. Defendant testified that the gun had discharged accidentally. The Supreme Court reversed finding that, even though defendant claimed that he was not guilty of any crime, the failure to give the two requested instructions foreclosed from the jury the option of convicting him according to his own testimony.

Recently in People v. Rochowiak, 416 Mich. 235, 330 N.W.2d 669 (1982), the defendant was tried and convicted of second-degree murder. Although the trial court gave an additional instruction for involuntary manslaughter, it refused to instruct for careless, reckless or negligent use of a firearm resulting in injury or death. In a 3 to 2 decision, ³ the Supreme Court reversed:

"While the arguments that it is highly unlikely that the jury would have convicted of reckless use and that Rochowiak's theory of the case was presented to and rejected by the jury are most compelling, we are persuaded that had the jury been instructed on reckless use, in addition to involuntary manslaughter, it might have better understood Rochowiak's theory and have [127 MICHAPP 640] returned a verdict of guilty of involuntary manslaughter." 416 Mich. 247, 330 N.W.2d 669.

The Supreme Court then established the following test for whether or not the failure to give an instruction for lesser included offenses is harmless:

"The error may indeed be harmless in a case where it is clear that the jury was presented with a lesser offense or offenses consistent with the defendant's theory which was rejected, and made findings of fact, implicit in the verdict, which would preclude conviction of the charge upon which an instruction was refused, or where the differences between the various offenses concern factual elements, the existence of a weapon (armed or non-armed), the completion of the offense (attempt), the use of force (larceny or robbery) and not the state of mind of the defendant (murder, manslaughter, reckless use, assault with intent to murder, with intent to commit great bodily harm less than murder, felonious assault)." 416 Mich. 248-249, 330 N.W.2d 669.

After reviewing both this Court's and the Supreme Court's decisions in this area, we find that the failure to give these instructions in fact prejudiced defendant. First, defendant was not convicted of the charged offense, breaking and entering, but instead of attempted breaking and entering, a five-year felony. It too strongly strains the cognate-lesser-included-offense doctrine to say that entering without breaking is in fact a lesser included offense of attempted breaking and entering. The jury was not really given a choice between the offense convicted of and the lesser included offenses for which instructions were denied. Therefore, we cannot say that the jury could have compromised on a lesser included offense if it had had any doubts about defendant's guilt. In fact, after looking at the evidence in this case, the jury [127...