People v. Chandler

• Decision Date: 28 September 1993
• Docket Number: Docket No. 135813
• Citation: 506 N.W.2d 882,201 Mich.App. 611
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Lewis CHANDLER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 882

506 N.W.2d 882

201 Mich.App. 611

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Lewis CHANDLER, Defendant-Appellant.

Docket No. 135813.

Court of Appeals of Michigan.

Submitted April 7, 1993, at Detroit.

Decided July 26, 1993.

Approved for Publication Sept. 28, 1993, at 9:00 a.m.

Released for Publication Nov. 5, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

State Appellate Defender by Charles J. Booker, for the defendant-appellant on appeal.

Before MARILYN J. KELLY, P.J., and SHEPHERD and CONNOR, JJ.

PER CURIAM.

Following a bench trial on September 20, 1990, defendant was convicted of assault with intent to rob while unarmed, M.C.L. § 750.88; M.S.A. § 28.283. On October 11, 1990, he was sentenced to 3 1/2 to 15 years' imprisonment. He appeals as of right.

Defendant argues that there was insufficient evidence to establish that he committed the crime of assault with intent to rob while unarmed. We agree.

When reviewing a claim of insufficient evidence following a bench trial, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11 (1985). Circumstantial evidence, and reasonable inferences arising from the evidence, may constitute satisfactory proof of the elements of the offense. People v. Drayton, 168 Mich.App. 174, 176, 423 N.W.2d 606 (1988).

MCL 750.88; MSA 28.283 provides:

Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen years.

M.C.L. § 750.530; M.S.A. § 28.798 provides:

Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen years.

M.C.L. § 750.92; M.S.A. § 28.287 provides, in pertinent part:

Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

* * * * * *

2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.

In People v. Sanford, 402 Mich. 460, 265 N.W.2d 1 (1978), the Court compared the offense of assault with intent to rob while unarmed, M.C.L. § 750.88; M.S.A. § 28.283, which carries a fifteen-year maximum sentence, with the offense of attempted unarmed robbery, M.C.L. § 750.92; M.S.A. § 28.287 and M.C.L. § 750.530; M.S.A. § 28.798, which carries a five-year maximum sentence. The Court found that the former is conjunctive and the latter is disjunctive:

The assault with intent to rob unarmed statute is conjunctive; there must be an assault with force and violence. The attempted robbery unarmed statute is disjunctive; the offense can be accomplished either by force and violence, or by assault, or putting in fear. Attempted robbery unarmed may therefore be committed simply by putting someone in fear while assault with intent to rob unarmed requires an assault with force and violence. [Sanford, supra, pp 473-474, 265 N.W.2d 1.]

In a footnote, the Court gave the essential elements of the two offenses: the essential elements of assault with intent to rob while unarmed are (1) an assault with force and violence, (2) an intent to rob and steal, and (3) defendant being unarmed; the essential elements of attempted unarmed robbery are (1) an attempted felonious taking of property from the person of another, (2) by force and violence or by assault or by putting in fear, and (3) defendant being unarmed. Id., p 474, n. 1, 265 N.W.2d 1 n. 1. The Court further explained in the footnote the difference between the two offenses:

An assault with intent to rob being unarmed necessarily involves an attempt or offer to do corporal injury, with the present intention and present ability to carry out the offer. In other words, there must be a criminally assaultive act.

Attempted unarmed robbery may or may not include a criminal assault. An attempted unarmed robbery may also be accomplished by force and violence or by putting in fear. Attempted unarmed robbery does not necessarily require an assault. Therefore, it is obvious that the defendant need not possess the present ability to carry out the offer. [Id., emphasis...