People v. Davis

• Decision Date: 01 August 1983
• Docket Number: Docket No. 65213
• Citation: People v. Davis, 337 N.W.2d 315, 126 Mich.App. 66 (Mich. App. 1983)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Douglass DAVIS, Defendant-Appellant. 126 Mich.App. 66, 337 N.W.2d 315
• Court: Court of Appeal of Michigan

Page 315

337 N.W.2d 315

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Gary Douglass DAVIS, Defendant-Appellant.

Docket No. 65213.

126 Mich.App. 66, 337 N.W.2d 315

Court of Appeals of Michigan.

Submitted Jan. 21, 1983.

Decided May 18, 1983.

Released for Publication Aug. 1, 1983.

[126 MICHAPP 67]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., William L. Cahalan, Pros.Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros.Atty., and Janice M. Joyce Bartee, Asst. Pros.Atty., for the people.

Patricia S. Slomski, Detroit, for defendant-appellant.

Before T.M. BURNS, P.J., and MAHER and HOOD, JJ.

PER CURIAM.

On April 28, 1982, following a bench trial, the defendant was convicted of felonious assault, M.C.L. Sec. 750.82;M.S.A. Sec. 28.277, and felony [126 MICHAPP 68] firearm, M.C.L. Sec. 750.227b;M.S.A. Sec. 28.424(2), and was subsequently sentenced to consecutive terms of from one to four years and two years imprisonment.He appeals as of right.

Defendant's only issue on appeal is that the trial court's findings of fact did not sufficiently comply with GCR 1963, 517.1.The court's findings are as follows:

"Well, looking at the testimony of the original witness for the People * * *, she stated she did know Mr. Davis, had been friends for some time.She herself was 26 years old.She was staying with Mr. Davis on this particular evening in the area of Mt. Elliott.She did testify that there was an argument on this particular evening.She testified to the effect that she was going to see a doctor, get a check-up.

"Mr. Davis said something to the effect that he was going to put her in the hospital.She went on to testify, she said that Mr. Davis had been drinking.He had smelled of alcohol, and that in her view Mr. Davis was playing with a gun, that he miscalculated in putting a bullet in the second chamber rather than the third chamber which resulted in pointing the gun and clicking the gun off in the direction of her head and it discharged.

"There was some testimony that Mr. Davis did present her with some type of cloth or rag to stop the bleeding and he did, in fact, make a telephone call to EMS.

"I don't think the People have satisfied their burden with regard to the charge in the information, that being assault with intent to murder.I do believe though that there is some authority stating that the crime of felonious assault is, in fact, a specific intent crime.

"I think if this was a jury trial, this Court would have to give the instruction on specific intent.This Court does believe, however, that intent is established by the prosecution with regard to Mr. Gary Douglass Davis was one of felonious assault.

"It's this Court's finding of fact that on this particular [126 MICHAPP 69] date, November 10, 1981, in the area of 6334 Mack Avenue, Mr. Gary Douglass Davis did commit the crime of felonious assault, and also did commit the crime of possession of a firearm in the commission or attempt to commit a felony.That being the case, the People have satisfied their burden to this Court beyond a reasonable doubt * * *."

Felonious assault is a specific intent crime.It requires that the defendant either intend to injure the victim or intend to put him in reasonable fear of immediate battery.People v. Joeseype Johnson, 407 Mich. 196, 284 N.W.2d 718(1979).Although the trial court acknowledged that felonious assault is a specific intent crime, it did not specifically find either of these alternatives as required by Joeseype Johnson.

To prove felony firearm, the prosecution must show that the defendant carried or possessed the firearm and that it was carried or possessed during a felony or an attempted felony.Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 397-398, 280 N.W.2d 793(1979).The possession must be knowing.People v. Hunt, 120 Mich.App. 736, 327 N.W.2d 547(1982);People v. Yarbrough, 107 Mich.App. 332, 309 N.W.2d 602(1981).In the present case, the trial court merely found defendant guilty of this crime without specifically finding any of the elements.

GCR 1963, 517.1 requires a full finding of fact for two reasons.First, it shows how the trial court resolved credibility issues and conflicts within the evidence.SeePeople v. Eaton, 413 Mich. 862(1982).Second, it reveals the law the trial court applied.People v. Ramsey, 89 Mich.App. 468, 280 N.W.2d 565(1979), lv. den.407 Mich. 861(1979).2 Honigman & Hawkins, Michigan Court Rules Annotated(2d ed.), p. 592.Both of these requirements [126 MICHAPP 70] are necessary to facilitate appellate review.People v. Kelly, 122 Mich.App. 427, 333 N.W.2d 68(1983);Wolfe v. Howatt, 119 Mich.App. 109, 326 N.W.2d 442(1982).

The findings of fact in the present case did not comply with the court rule.In order for this Court to know what law was applied, the trial court must at least find the elements of the crime.In People v. McShan, 120 Mich.App. 496, 327 N.W.2d 509(1982), this Court remanded where the trial court failed to mention in its opinion the specific intent element in felonious assault.See alsoPeople v. Triplett, 414 Mich. 898, 323 N.W.2d 7(1982);People v. Rae, 103 Mich.App. 293, 302 N.W.2d 845(1980).The trial court's failure to specifically state that it had found each element for both crimes necessitates remand.

Under certain circumstances, appellate courts will not remand for a full fact-finding even if the fact-finding is inadequate:

"A judge's failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result as, for example, where the only factual issue is identification."People v. Jackson, 390 Mich. 621, 627, fn. 3, 212 N.W.2d 918(1973).

SeePeople v. Vandergrift, 107 Mich.App. 555, 309 N.W.2d 665(1981).However, this exception by its own terms is limited only to the first reason for GCR 1963, 517.1--resolving credibility issues and conflicts within the evidence.It does not apply to finding the elements of the crime in criminal cases.An appellate court cannot sufficiently know that the trial court has found the defendant guilty [126 MICHAPP 71] of the crime charged unless it specifically finds each element.¹

On remand, the trial court is also to specifically consider and make findings on defendant's intoxication and accident defenses.SeePeople v. McKeever, 123 Mich.App. 533, 332 N.W.2d 596(1983);People v. Stanford, 68 Mich.App. 168, 174-175, 242 N.W.2d 56(1976).Intoxication is a defense to felonious assault.People v. Polk (On Rehearing), 123 Mich.App. 737, 333 N.W.2d 499(1983);People v. Wilson, 113 Mich.App. 591, 318 N.W.2d 479(1981).

Remanded to make findings of fact pursuant to GCR 1963, 517.1.We do not retain jurisdiction.²

1...