People v. Flores

• Decision Date: 21 August 1979
• Docket Number: Docket No. 78-934
• Citation: 284 N.W.2d 510,92 Mich.App. 130
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur FLORES, Defendant-Appellant. 92 Mich.App. 130, 284 N.W.2d 510
• Court: Court of Appeal of Michigan — District of US

Page 510

284 N.W.2d 510

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur FLORES, Defendant-Appellant.

Docket No. 78-934.

92 Mich.App. 130, 284 N.W.2d 510

Court of Appeals of Michigan.

Aug. 21, 1979.

Released for Publication Nov. 9, 1979.

[92 MICHAPP 132] Hatchett, Dewalt & Hatchett by William M. Hatchett, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, App. Chief, Robert F. Davisson, Asst. Pros. Attys., for plaintiff-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the first degree contrary to M.C.L. § 750.110; M.S.A. § 28.305 and first-degree criminal sexual conduct where sexual penetration is accomplished by use of force or coercion causing personal injury to the victim contrary to M.C.L. § 750.520b(1)(f); M.S.A. § [92 MICHAPP 133] 28.788(2)(1)(f). Defendant was sentenced to concurrent terms of 10 to 15 years and 15 to 25 years imprisonment, respectively, and is before this Court by leave granted.

Defendant raises three issues on appeal.

First, defendant claims that his warrantless arrest, shortly after the complainant reported the rape and breaking and entering, was without probable cause and that all evidence admitted at trial flowed from the illegal arrest and should have been suppressed. Review of the record reveals that no objection was made in the form of a motion to suppress evidence obtained as a result of an allegedly illegal arrest. Generally, error cannot be claimed unless the motion is timely made in the court below. People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965); People v. Blassingame 59 Mich.App. 327, 332-333, 229 N.W.2d 438 (1975). However, where a defendant "raises a constitutional question for the first time on appeal, the Court must determine if the allegedly erroneously admitted evidence was decisive to the outcome of the case". People v. Merchant, 86 Mich.App. 355, 358, 272 N.W.2d 656, 657 (1978); People v. Blassingame, supra. Before we determine whether the complained of evidence was decisive, I. e., its exclusion probably would have meant acquittal for the defendant, it is necessary to ask whether the evidence was erroneously admitted into evidence in the first instance. People v. Summers, 70 Mich.App. 584, 586-587, 246 N.W.2d 152 (1976); People v. Blassingame, supra. We find that it was not.

Review of the full record convinces us that the arresting officers were provided with sufficient probable cause to effect defendant's warrantless arrest. The testimony of the arresting officers indicates that they had received reasonably trustworthy[92 MICHAPP 134] information from the complainant regarding her assailant's height, build, hair, accent, and the clothes he wore. Furthermore, the officers had been advised that a neighbor had detected footprints in the snow from the victim's home across the street to a house a short distance away where defendant was found. This information, combined with the officers' initial interview with the defendant, is sufficient to warrant a prudent person in believing that the defendant had committed a felony offense. M.C.L. § 764.15(d); M.S.A. § 28.874(d), People v. Robinson, 71 Mich.App. 287, 248 N.W.2d 237 (1976); People v. Langston, 57 Mich.App. 666, 671-673, 226 N.W.2d 686 (1975). Since the warrantless arrest was valid, evidence seized incident to that arrest was properly obtained and, hence, admissible into evidence at the subsequent trial. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973); People v. Krontz, 50 Mich.App. 495, 213 N.W.2d 593 (1973).

Second, defendant claims that the trial court erred in admitting, over his objection on grounds of relevancy, the testimony of the complainant's 13-year-old neighbor regarding his discovery of footprints in the snow which led from the complainant's home to the house in which the defendant was found. Contrary to defendant's assertion we hold that the evidence was both logically and legally relevant. People v. Nichols, 341 Mich. 311, 331, 67 N.W.2d 230 (1954); People v. DerMartzex, 390 Mich. 410, 415, 213 N.W.2d 97 (1973), MRE 401, 403.

The trial judge enjoys the discretion of ruling on the admissibility of evidence on the basis of relevancy. People v. DerMartzex, supra; People v. Utter, 217 Mich. 74, 185 N.W. 830 (1921). That decision will not be reversed unless it is clearly erroneous [92 MICHAPP 135] and indicates an abuse of discretion. People v. Ranes, 63 Mich.App. 498, 234 N.W.2d 673 (1975). The trial judge determined that the jury could properly infer from the footprints the presence of the maker at the time of the criminal act. And although the prosecutor was unable to identify the footprints as being those of the defendant (2 Wigmore, Evidence (3d ed.), § 415), this factor was properly determined to be a matter of weight for the trier of fact, and not of law, People v. Abdalla, 70 Mich.App. 697, 701, 247 N.W.2d 332 (1976), and see People v. Keep, 123 Mich. 231, 81 N.W. 1097 (1900), notwithstanding the nonexpertise of the witness regarding the identification or tracking of footprints. 3 Wharton's Criminal Evidence (13th ed.), § 610, p. 179. As such, the trial court did not abuse its discretion in admitting the challenged testimony. People v. Abdalla, supra; People v. Keep, supra. See also, Anno: Footprints as evidence, 31 A.L.R. 20. Anno: Footprints as evidence, 35 A.L.R.2d 856, 29 Am.Jur.2d, Evidence, § 377, p. 427, 32 C.J.S. Evidence § 546(9), (24), (59); 1 Wharton's Criminal Evidence (13th ed.), § 193, p. 394.

Finally, defendant claims that his conviction for breaking and entering an occupied dwelling with intent to commit first-degree criminal sexual conduct is constitutionally prohibited because the double jeopardy clause of the United States and Michigan constitutions forbid double punishment where the acts of breaking and entering and first-degree criminal sexual conduct arose out of the same transaction. In short, defendant contends that the prosecution proved, at best, that there was but a single intent by the complainant's assailant, and that was to have sexual intercourse with the complainant. Since the breaking and entering was an essential element of the offense of [92 MICHAPP 136] the first-degree criminal sexual conduct, defendant contends that separate convictions violate the double jeopardy clause on authority of People v. Swearington, 84 Mich.App. 372, 269 N.W.2d 467 (1978). We disagree.

In People v. Swearington, supra, the defendant was convicted of breaking and entering with intent to commit larceny, contrary to M.C.L. § 750.110; M.S.A. § 28.305, and first-degree criminal sexual conduct, contrary to M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1). While it is not clear from the face of the opinion what aggravating circumstance resulted in bringing a charge of first-degree criminal sexual conduct against the defendant, as opposed to a charge of merely third-degree criminal sexual conduct M.C.L. 750.520d; M.S.A. § 28.788(4), we have examined the record in Swearington and have determined that the defendant in that case had been charged with the offense of engaging

"in sexual penetration with another person, * * * under circumstances involving the commission of another felony, to wit: breaking and entering an occupied dwelling with intent to commit a larceny therein, contrary to M.S.A. 28.788(2)(1)(c)."

Upon conviction of both the breaking and entering and the criminal sexual conduct charges, the defendant appealed to this Court which reversed the conviction for breaking and entering on the grounds that the breaking and entering was an essential element of the first-degree criminal sexual conduct conviction in violation of the double jeopardy clause of the Federal and state constitutions.

The instant case is clearly distinguishable from Swearington. In the case at bar, the defendant was charged with breaking and entering with intent to [92 MICHAPP 137] commit a felony, to wit: criminal sexual conduct in the first degree. The elements of that crime include (1) the breaking and entering of (2) an occupied dwelling with (3) felonious intent. People v. Benevides, 71 Mich.App. 168, 247 N.W.2d 341 (1976). People v. D'Argis, 44 Mich.App. 186, 205 N.W.2d 19 (1972). The record clearly reflects, and the defendant does not dispute, that each of these elements was properly established by the prosecution. As such, the criminal breaking and entering...