People v. Fobb
| Decision Date | 05 February 1986 |
| Docket Number | Docket No. 79008 |
| Citation | 378 N.W.2d 600,145 Mich.App. 786 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Callie FOBB, Defendant-Appellant. 145 Mich.App. 786, 378 N.W.2d 600 |
| Court | Court of Appeal of Michigan — District of US |
[145 MICHAPP 787] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Margaret G. Horenstein, Asst. Pros. Atty., for People.
Cecil D. St. Pierre, Jr., Detroit, for defendant-appellant.
Before ALLEN, P.J., and GRIBBS and GILLESPIE, * JJ.
On April 17, 1984, defendant was convicted by a jury of extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, and of assault with intent to do great [145 MICHAPP 788] bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279. She was sentenced to from 3 to 20 years imprisonment on the extortion conviction and to from 3 to 10 years imprisonment on the assault conviction, both sentences to run concurrently. She now appeals as of right, claiming that there was insufficient evidence to convict her of extortion and, if there was sufficient evidence, the convictions for both extortion and assault with intent to commit great bodily harm less than murder constituted double jeopardy. We reverse defendant's extortion conviction and affirm her assault conviction.
On November 17, 1983, defendant telephoned Trudy Hallisy, the property manager for Charles Lane Apartments in Pontiac, and complained bitterly that Hallisy had been spreading lies about defendant. Ms. Hallisy hung up on defendant and defendant telephoned a second time, this time asserting that defendant was going to sue Ms. Hallisy for $21,000. Again Hallisy hung up. Thereafter, Hallisy locked the office door and went to the rest room area in the office to dry her hair which was still wet from a recent haircut. As she was doing so, she heard the front door crack and break open. Ms. Hallisy then found herself being charged by defendant. Defendant attacked Hallisy first by choking her and then by beating her with Hallisy's hairdryer. During this attack, defendant ordered Hallisy to draft and sign a note stating that Hallisy had reported lies about defendant. Hallisy complied with defendant's directions because of the beating she was receiving from defendant.
The evidence in this case fully supports the conviction for assault with intent to do great bodily harm less than murder and that conviction is affirmed.
[145 MICHAPP 789] The defendant was also convicted of extortion pursuant to M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, which reads as follows:
"Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than twenty years or by a fine of not more than ten thousand dollars."
This Court decided the case of People v. Krist, 97 Mich.App. 669, 296 N.W.2d 139 (1980), lv. den. 409 Mich. 936 (1980). The factual situation therein was similar to that in this case. The Court analyzed the extortion statute quoted above and concluded that the crime of extortion as defined in that statute contemplates only threats of future harm and does not apply to present harm being inflicted.
The Court said at 676, 296 N.W.2d 139:
[145 MICHAPP 790] Based on the fact that the defendant in Krist was presently assaulting, harassing and threatening the complainant, the Court found that the crime would not lie under the extortion statute. We would disagree with that analysis. We do not, after study of the cases cited, believe that those cases support the proposition that only threats of future harm are envisioned by the statute. We believe that threats of imminent injury or of continuation of injury presently being inflicted will support a conviction for extortion. We perceive the elements of the extortion statute, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410, to be as follows:
1. An oral or written communication maliciously encompassing a threat.
2. The threat must be to:
a. Accuse the person threatened of a crime or offense, the truth of such accusation being immaterial; or
b. Injure the person or property of the person threatened; or
c. Injure the mother, father, husband, wife or child of the person threatened.
3. The threat must be: a. With intent to extort money or to obtain a pecuniary advantage to the threatener; or
b. To compel the person threatened to do, or refrain from doing, an act against his or her will.
The malice required by the statute does not contemplate a feeling of ill will towards the person threatened, but is satisfied by the wilful doing of an act with an illegal intent. People v. Whittemore, 102 Mich. 519, 61 N.W. 13 (1894).
In the present case the note was obtained against the victim's will. It gave the defendant no apparent pecuniary advantage, nor did the note seem to have any rationale or importance. It [145 MICHAPP 791] seemed to have been obtained merely to satisfy some unexplained whimsy on the part of the defendant.
On the other hand, the inclusion of the extortion count doubled the penalty which could be imposed.
The defendant raises the objection of double jeopardy in that evidence supporting both the assault and the extortion emanated from the same transaction.
In People v. Carter, 415 Mich. 558, 330 N.W.2d 314 (1982), the Supreme Court explained the application of the Blockburger 1 rule by stating that if one offense is a lesser included offense of the other, it is the same offense and cannot be additionally punished.
Assault with intent to do great bodily harm less than murder is certainly a different crime than extortion. They share no common elements. There was, accordingly, no double jeopardy question in connection with this conviction.
The difficulty that we find with the defendant's extortion...
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...(2) threatening injury or accusation of a crime, (3) with the intent to extort money or compel an act. People v. Fobb, 145 Mich.App. 786, 790, 378 N.W.2d 600, 602 (1985). The Michigan Court of Appeals applied the Jackson standard in addressing and rejecting Petitioner's insufficient evidenc......
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