People v. Combs, Docket No. 23480

• Decision Date: 20 May 1976
• Docket Number: Docket No. 23480
• Citation: 69 Mich.App. 711,245 N.W.2d 338
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Shelby COMBS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 338

245 N.W.2d 338

69 Mich.App. 711

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Shelby COMBS, Defendant-Appellant.

Docket No. 23480.

Court of Appeals of Michigan.

May 20, 1976.

Released for Publication Sept. 20, 1976.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Defendant was convicted by a jury of attempted breaking and entering with intent to commit larceny. M.C.L.A. § 750.92; M.S.A. § 28.287, M.C.L.A. § 750.110; M.S.A. § 28.305. He received a sentence of 3 to 5 years in prison. Defendant appeals as of right.

Although the defendant was convicted of attempted breaking and entering with intent to commit larceny, he was initially charged with and tried for a completed breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. At trial sufficient evidence was introduced which, if believed by the jury, would support a finding adverse to the defendant on the elements of breaking and intent to commit a larceny. However, the only evidence introduced on the element of entry was the testimony of one of the arresting officers that he found blood on the inside of the broken store window and cuts on the defendant's hands. The defendant moved for a directed verdict of acquittal on the charge of breaking and entering with intent to commit larceny because the evidence of an entry was insufficient. The motion was denied.

Initially, we note that the evidence is clearly sufficient to support the jury's verdict of guilty of attempted breaking and entering with intent to commit larceny. This is because an actual entry is not a necessary element for attempted breaking and entering with intent to commit larceny. Accord, Harris v. People, 44 Mich. 305, 308, 6 N.W. 677 (1880). The fact that the defendant was convicted of attempted breaking and entering with intent to commit larceny, however, does not moot the issue. As the defendant points out, submitting a charge to the jury where the defendant is clearly not guilty might result in the jury reaching a compromise verdict of guilty of a lesser included offense. Cf., Price v. Georgia, 398 U.S. 323, 331--332, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

On this point the prosecution's case for the completed offense rested on circumstantial evidence. In order to find against the defendant on an issue based on circumstantial evidence the facts proven must not only point to that conclusion but must also be inconsistent with any other reasonable hypothesis favorable to the defendant. Accord, People v. Millard, 53 Mich. 63, 70--71, 18 N.W. 562 (1884), People v. Wingfield, 62 Mich.App. 161, 163, 233 N.W.2d 220 (1975). In reviewing a motion for a directed verdict of acquittal, however, we view the evidence presented on the issue at the time of the motion in the light most favorable to the prosecution, and determine whether the evidence, if credible and believed, would justify a reasonable man in concluding that all the elements of the crime were established beyond a reasonable doubt. People v. Fudge, 66 Mich.App. 625, 239 N.W.2d 686 (1976).

Applying these two standards we conclude that there was sufficient evidence presented to submit the issue of whether the defendant entered the store building to the jury. The fact that the jury did not find the defendant guilty of the completed offense does not mean that the trial court erred in determining that reasonable men Could find the defendant guilty as charged on the basis of the evidence presented. Cf., People v. Stewart, 36 Mich.App. 93, 99, 193 N.W.2d 184 (1971). To hold otherwise would mean that in any case in which the jury returned a verdict of guilty of a lesser included offense instead of the charged offense the trial court would have committed error in denying a defense motion for a directed verdict of acquittal on the charged offense.

At the time of his arrest defendant made several inculpatory statements to the arresting police officers. Prior to trial he moved to suppress the statements claiming that they were not voluntarily made. At a Walker ¹ hearing the defendant testified that his recollection of the events surrounding his arrest was very fuzzy. He further testified that during the preceding afternoon he had consumed 10 to 20 sleeping pills and nearly all of a fifth of wine. He also testified that he did not remember being advised of his constitutional rights.

The two arresting police officers also testified at the Walker hearing. One of the arresting officers stated that at the time of the incident the defendant's dress was in disarray; his answers were slow in coming; but his speech was not slurred. The officer also testified the defendant's eyes did not appear to be glazed and the defendant did not appear to be sleepy or unaware of what was going on. In his opinion the defendant appeared blase rather than depressed. His partner, on the other hand, thought the defendant appeared depressed but stated he did not believe the defendant when the defendant told him that he was 'strung out'. Both officers stated that they participated in advising the defendant of his constitutional rights.

At the close of the Walker hearing the trial court denied the defendant's motion to suppress. In reviewing this ruling we look at the entire record of the Walker hearing and reach an independent conclusion. However, we give deference to the findings of the trial court since it is in a superior position to judge the credibility of the witnesses. People v. Hummel, 19 Mich.App. 266, 268--270, 172 N.W.2d 550 (1969).

In reviewing the cold, typewritten transcript of the Walker hearing it is clear that there was a conflict between the two versions of the incident presented to the trial court. Since the central issue becomes one of credibility we will not disturb the trial court's findings of fact. People v. Olson, 66 Mich.App. 197, 201, 238 N.W.2d 579 (1975). The trial court was not required to accept the defendant's version of the incident and we cannot say after reviewing the entire record of the Walker hearing that the trial court's finding that the defendant's statements were voluntarily made is clearly erroneous. GCR 1963, 517.1, People v. Bradley, 54 Mich.App. 89, 97--98, 220 N.W.2d 305 (1974).

In instructing the jury the trial court read the statute on breaking and entering with intent to commit larceny and the information charging the defendant with breaking and entering with intent to commit larceny. It then defined the elements of breaking and entering with intent to commit larceny, including the element of intent to commit larceny, and defined the elements of attempted breaking and entering with intent to commit larceny, the only lesser included offense presented. At the close of its instructions the court stated that there were three possible verdicts: (1) 'guilty, as charged, of the crime of breaking and entering'; (2) 'guilty of the lesser included offense of attempted breaking and entering'; and (3) 'not guilty'.

The defendant alleges that two errors were committed during the instructions to the jury. First, the defendant states that the instructions inadequately informed the jury and confused the jury on the element of intent to commit larceny. Second, he claims that the trial court incorrectly failed to instruct on the lesser included offenses of breaking and entering without intent to commit a felony or larceny, M.C.L.A. § 750.115; M.S.A. § 28.310, and attempted breaking and entering without intent to commit a felony or larceny. M.C.L.A. § 750.92; M.S.A. § 28.287, M.C.L.A. § 750.115; M.S.A. § 28.310.

In this case we are unable to discern from the record that any request was made for these two lesser included offenses. There being no request for these two lesser included offenses on the record and no objection to the trial court's failure to give them, we are precluded from finding any error. People v. Smith, 396 Mich. 362, 240 N.W.2d 245 (1976), People v. Henry, 395 Mich. 367, 374, 236 N.W.2d 489 (1975).

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