People v. Edgar, Docket No. 28806

• Decision Date: 04 May 1977
• Docket Number: Docket No. 28806
• Citation: 255 N.W.2d 648,75 Mich.App. 467
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James F. EDGAR, Defendant-Appellant. 75 Mich.App. 467, 255 N.W.2d 648
• Court: Court of Appeal of Michigan — District of US

Page 648

255 N.W.2d 648

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James F. EDGAR, Defendant-Appellant.

Docket No. 28806.

75 Mich.App. 467, 255 N.W.2d 648

Court of Appeals of Michigan.

May 4, 1977.

Released for Publication July 20, 1977.

[75 MICHAPP 468] Nino E. Green, Escanaba, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Tony I. Marcinkewciz, Prosecutor, Prosecutor's Appellate Service, Lansing, for plaintiff-appellee.

Before ALLEN, D. E. HOLBROOK, Jr., and QUINN, JJ.

ALLEN, Judge.

A jury found the defendant guilty as charged of larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. The verdict was returned on March 10, 1976. The defendant was later sentenced to a prison term of 11/2 to 4 years. This is an appeal as of right.

Defendant argues that the trial judge erred by denying his motion for a directed verdict of acquittal following the close of the prosecution's case. The motion was premised on the following rule.

"The established rule is that where the people's case is based on circumstantial evidence the prosecution has the burden of proving 'that there is no innocent theory possible which will, without violation of reason, accord with the facts'." People v. Davenport, 39 Mich.App. 252, 256, 197 N.W.2d 521, 522 (1972).

Davenport quoted the rule from People v. Millard, 53 Mich. 63, 18 N.W. 562 (1884). It is safe to assume that, with minor variations, the rule has been repeated and applied in hundreds of Michigan cases.

The case against the defendant was based on [75 MICHAPP 469] circumstantial evidence. Testimony showed that the defendant and his wife had visited Collins' Pre-Built Homes in Escanaba during the week before Labor Day, 1975. Escanaba is approximately 20 miles east of the defendant's home in Wilson, Michigan.

The Collins establishment closed for the Labor Day weekend in the late afternoon of Friday, August 29, and did not reopen until Tuesday, September 2. When the business closed on Friday, a certain modular home had been prepared for shipment and contained a full complement of furniture.

On Monday (Labor Day) September 1, the defendant left home in his truck at approximately 10 a. m. and returned one hour later with a load of furniture. He told a prosecution witness that he had previously purchased the furniture as factory seconds in Green Bay, Wisconsin and had temporarily stored it at his father's home. The defendant's home is approximately 75 miles northeast of Green Bay.

The theft of the furniture was discovered when Collins' Pre-Built Homes opened for business Tuesday, September 2.

On September 18, a local police agency received a tip that the missing furniture would be found at the defendant's home. Investigators went to the home on September 20, and found the furniture. As a result, the defendant was charged with larceny in a building.

All of the evidence set forth above has been taken from the testimony of prosecution witnesses. The defendant moved for a directed verdict at the close of the prosecution's case. After doing some research, the trial judge denied the motion on authority of People v. Fry, 17 Mich.App. 229, 169 [75 MICHAPP 470] N.W.2d 168 (1969), which expressly held that evidence that a defendant possessed stolen property shortly after a theft would support a finding that the defendant was the person who actually stole the property. See also People v. Helcher, 14 Mich.App. 386, 165 N.W.2d 669 (1968); People v. Williams, 368 Mich. 494, 118 N.W.2d 391 (1962).

When the motion for a directed verdict of acquittal was denied, the defense rested without presenting any witnesses. The defendant's principal argument on appeal is that, because the case against him was based on circumstantial evidence, the trial judge erred by denying the motion for a directed verdict. See People v. Davenport, supra.

We turn first to People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976), in which the Supreme Court discussed the role of the appellate courts in reviewing denials of motions for directed verdicts.

"An appellate court tests the correctness of the denial of such motion by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty." (Emphasis in original.) 398 Mich. at 256, 247 N.W.2d at 549.

The dispute focuses on whether the prosecution presented "any (sufficient) evidence" that the defendant is the person who actually stole the furniture. The proof advanced by the prosecution to establish that element of the offense was circumstantial. But a jury may infer participation in a theft from the fact of possession of stolen property a short time after the theft. People v. Fry, supra, People v. Williams, supra. Contra, People v. Strawther, 47 Mich.App. 504, 209 N.W.2d 737 (1973). Given the precedent, we could affirm without further comment, but we feel obliged to address[75 MICHAPP 471] the defendant's argument based on People v. Davenport, supra, because there is a clear inconsistency between the rule stated in Davenport and the result reached in Fry and other similar cases.

Fry and its kin are proof that the Davenport rule is more a rationale for a result, rather than a true objective standard which can be evenly applied in all cases. We often affirm convictions based on circumstantial evidence without extensive comment. See e. g., People v. Wingfield, 62 Mich.App. 161, 233 N.W.2d 220 (1975), in which the defendant was convicted on a showing that money was in a drawer immediately before the defendant had access to the drawer and the money was missing immediately after the defendant left. In Wingfield, the evidence was circumstantial but the inculpatory inference was so strong that the jury and the reviewing judges had no trouble concluding that the facts were "inconsistent with any other reasonable hypothesis upon which the defendant's innocence may be maintained". 62 Mich.App. at 163, 233 N.W.2d at 222.

It is equally easy to apply the Davenport rule where the evidence is obviously too weak to support a conviction. Evidence that a defendant was present in this State when a crime occurred may have some evidentiary value but, standing alone, it would never be sufficient to support a conviction. In such a case it would be easy to reverse on the grounds that the facts did not exclude all possible innocent hypotheses.

The problems arise when, as in the present case, the facts fall somewhere between the two extremes described in the preceding paragraphs. Here, we know that the furniture was stolen sometime between Friday night and Monday morning. We know that the defendant had been inside the [75 MICHAPP 472] modular home less than one week before the theft. And, most important, we know that the defendant possessed the furniture on Monday morning and according to his statement to a prosecution witness had previously stored the furniture at his father's home for at least one day.

All of the evidence tending to prove that defendant actually stole the furniture is circumstantial. Therefore, according to Davenport we must ask if it is inconsistent with any other reasonable hypothesis upon which defendant's innocence may be maintained. If we applied that test literally, we would be forced to reverse the conviction. None of the evidence specifically disproves the suggested hypothesis that the defendant bought the furniture in Green Bay, Wisconsin, on Saturday or Sunday. But, for reasons outlined below, we decline to apply the test literally.

First, we believe that the implied distrust of circumstantial evidence is not warranted. Whether the evidence is "direct" or "circumstantial", we would not allow a conviction if we felt that the evidence...