People v. O'Connor

• Decision Date: 25 July 1973
• Docket Number: No. 2,Docket No. 14740,2
• Citation: 48 Mich.App. 524,210 N.W.2d 805
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael O'CONNOR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 805

210 N.W.2d 805

48 Mich.App. 524

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael O'CONNOR, Defendant-Appellant.

Docket No. 14740.

Court of Appeals of Michigan, Division No. 2.

July 25, 1973.

Released for Publication Oct. 4, 1973.

Clinton C. House by Forrest T. Walpole, Caro, for defendant-appellant.

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

Before HOLBROOK, P.J., and DANHOF and ADAMS ^*, JJ.

HOLBROOK, Presiding Judge.

Defendant was found, after trial without jury, guilty of conspiring to commit the crime of breaking and entering with intent to commit a felony, contrary to M.C.L.A. § 750.157a; M.S.A. § 28.354(1). He was sentenced July 5, 1972, to three years probation with the first 30 days in the Tuscola County Jail and $400 fine and costs. Defendant appeals claiming there was insufficient evidence introduced at trial to support his conviction for conspiracy.

Criminal conspiracy is a mutual understanding or agreement between two or more persons, expressed or implied, to do or accomplish some criminal or unlawful act or purpose or to accomplish some lawful act or purpose not in itself criminal, but by criminal or unlawful means. People v. Thomas, 7 Mich.App. 519, 152 N.W.2d 166 (1967). To sustain a conviction of conspiracy to commit a crime, proof of an overt act in pursuance of the conspiracy is not required. People v. Rosen, 18 Mich.App. 457, 171 N.W.2d 488 (1969). Proof of formal agreement is unnecessary to support a finding of guilt on a charge of criminal conspiracy, and it is sufficient if circumstances, acts, and conduct of the parties are such as to show agreement in fact. Thomas, supra; People v. Huey, 345 Mich. 120, 75 N.W.2d 893 (1956). However, whenever circumstantial evidence is relied upon for a conviction, the circumstances must be proved and cannot be presumed. People v. Eaves, 4 Mich.App. 457, 462, 145 N.W.2d 260, 263 (1966). There must be sufficient evidence to prove defendant's guilt beyond a reasonable doubt. People v. Hubbard, 19 Mich.App. 407, 172 N.W.2d 831 (1969).

Given that basis in the law we are compelled by our view of the facts to find that the defendant's conspiracy conviction was unwarranted. Defendant, aged 17 years, his 15-year-old stepbrother George Buniack, and his 29-year-old uncle Gary O'Connor were arrested for the early morning break-in of a small lawnmower repair shop and service station. Candy bars, cigarettes, some gloves, a soldering gun, and a few pennies were stolen in the break-in. Buniack was handled in Probate Court and Gary O'Connor pled guilty to a reduced charge of simple larceny. Buniack testified the three left a restaurant together the evening of the break-in in a car driven by the defendant and drove through the town of Caro a couple of times, until he expressed a desire to go to the bathroom. The car was stopped a block or two from the site of the break-in. Buniack testified he and Gary O'Connor got out of the car to go to the bathroom, and then walked to the gas station and broke in, returning shortly with their contraband to the car, where they found the defendant in the back seat asleep. The defendant was then awakened so he could drive the car. Buniack testified that they decided to break into the gas station when they got out of the car to go to the bathroom. While he acknowledged that the breaking into the gas station was discussed with the three of them present, he qualified his statement by saying, 'in a sense, he (the defendant) did, but he wasn't answering any of the questions'. On cross-examination Buniack stated the defendant did not participate in any of the conversations about the break-in and that he was in error in answering affirmatively to the question put to him at the time he gave his statement 'Did Mike know that you and Gary was going to break into the building?'

Deputy Sheriff Southworth testified that the defendant admitted to him that he was 'in on it'. This testimony was extensively disputed by defense counsel, apparently so much so that the trial judge decided to ignore Southworth's testimony as substantive evidence of the crime. Detective Bruce Tait testified that he questioned the defendant about the break-in and that defendant told him he knew about the break-in because the others told him about it, but he denied discussing it beforehand or sharing the loot afterward.

Gary O'Connor was called as a defense witness and stated only he and Buniack participated in the break-in. He further testified that the discussion as to the break-in between him and Buniack occurred after they had gotten out of the car, that the defendant stayed in the car and was sleeping in the back seat when he and Buniack returned after the break-in.

Defendant took the stand on his own behalf, denied any participation in the crime, denied he told Detective Southworth that he was 'in on it', and claimed he learned of the break-in only after it occurred.

What the testimony of all the witnesses amounted to was four pieces of circumstantial evidence: (1) defendant's presence in the vicinity of the crime; (2)...