People v. Harrington, Docket No. 129445

• Decision Date: 01 June 1992
• Docket Number: Docket No. 129445
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis R. HARRINGTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 479

487 N.W.2d 479

194 Mich.App. 424

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis R. HARRINGTON, Defendant-Appellant.

Docket No. 129445.

Court of Appeals of Michigan.

Submitted April 21, 1992, at Lansing.

Decided June 1, 1992, at 9:05 a.m.

Released for Publication Aug. 28, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Robert C. Williams, Asst. Pros. Atty., for the People.

Charles P. Reisman, Birmingham, for defendant on appeal.

Before McDONALD, P.J., and WAHLS and TAYLOR, JJ.

TAYLOR, Judge.

Defendant was charged with assault with intent to murder, ¹ carrying a firearm or dangerous weapon with unlawful intent, ² and possession of a firearm during the commission of a felony. ³ He was convicted by a jury of the lesser offense of assault with intent to do great bodily harm less than murder, ⁴ as well as carrying a dangerous weapon with unlawful intent and felony-firearm. He was sentenced to concurrent prison terms of six to ten and two to five years for the convictions of assault and carrying a dangerous weapon with unlawful intent, respectively, and the mandatory consecutive two-year term for the felony-firearm conviction. He appeals his convictions and sentences as of right, and we affirm.

At trial, the prosecutor presented evidence that defendant telephoned his girl friend's father and said that he was coming over to blow up his car and house. Within twenty minutes of the telephone call, defendant arrived in a pickup truck. When the victim stepped out to look at the license plate on the truck, defendant stuck his head out of the passenger window, yelled obscenities at the victim, and revealed a handgun. The victim jumped behind a tree, and defendant fired the gun from a distance of approximately twenty yards. The victim heard gunfire, saw the tree move, and heard a whirling noise three or four feet above his head. Although no bullet holes or bullet damage was found, the victim's version of the events was corroborated by another prosecution witness. Defendant denied having a firearm, yelling obscenities, or threatening the victim.

Defendant's first claim is that the Double Jeopardy Clauses of the Michigan and United States Constitutions ⁵ were violated when he was convicted of both assault with intent to commit great bodily harm less than murder and carrying a dangerous weapon with unlawful intent. He argues that the prosecutor artificially bifurcated a single crime by charging defendant separately for the preparation (carrying a dangerous weapon with the intent to attack someone) and the actual attack (the assault charge), thus double punishment was imposed for a single crime. He also argues that both charges protect society against the same conduct.

Although defendant did not raise this issue in the trial court, we will review the issue because it involves a significant constitutional question. People v. Alexander, 188 Mich.App. 96, 101, 469 N.W.2d 10 (1991).

Both the Double Jeopardy Clause of the United States Constitution and the similar provision of the Michigan Constitution protect against successive prosecutions for the same offense, and against multiple punishment for the same offense. People v. Bewersdorf, 438 Mich. 55, 72, 475 N.W.2d 231 (1991); People v. Sturgis, 427 Mich. 392, 400, 397 N.W.2d 783 (1986). The purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant's interest in not enduring more punishment than was intended by the Legislature. People v. Whiteside, 437 Mich. 188, 200, 468 N.W.2d 504 (1991). It is well settled that a double jeopardy challenge based on multiple-punishment grounds is resolved by ascertaining and enforcing the intent of the Legislature. Bewersdorf, 438 Mich. at 73, 475 N.W.2d 231; Whiteside, 437 Mich. at 201, 468 N.W.2d 504; Sturgis, 427 Mich. at 400, 405, 397 N.W.2d 783; People v. Robideau, 419 Mich. 458, 469, 355 N.W.2d 592 (1984); People v. Wakeford, 418 Mich. 95, 105-106, 341 N.W.2d 68 (1983); People v. Kaczorowski, 190 Mich.App. 165, 169, 475 N.W.2d 861 (1991).

Under the federal test, two separate offenses generally exist when each offense requires proof of at least one fact that the other offense does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); People v. Wilson, 180 Mich.App. 12, 16, 446 N.W.2d 571 (1989). However, two offenses can have common elements and still be separate for double jeopardy purposes if the legislative intent that separate offenses be created is clear from the face of the statutes or the legislative history. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); People v. McKinley, 168 Mich.App. 496, 503, 425 N.W.2d 460 (1988).

The Michigan Constitution, on the other hand, affords broader protection than does its federal counterpart. People v. Carter, 415 Mich. 558, 582, 330 N.W.2d 314 (1982). In reviewing a double jeopardy challenge on multiple-punishment grounds under the Michigan Constitution, we consider: (1) whether one statute prohibits conduct violative of a social norm distinct from the norm protected by the other statute, and (2) the amount of punishment authorized by each statute, and whether the statutes are hierarchical or cumulative. Robideau, 419 Mich. at 487, 355 N.W.2d 592; Sturgis, 427 Mich. at 407, 397 N.W.2d 783; People v. Crawford, 187 Mich.App. 344, 348-349, 467 N.W.2d 818 (1991). Comparing the elements of the offense may also be a useful tool. Sturgis, 427 Mich. at 409, 397 N.W.2d 783; Kaczorowski, 190 Mich.App. at 170-171, 475 N.W.2d 861.

In this case, we note that assault with intent to commit great bodily harm less than murder is found in the "Assaults" chapter of the Penal Code. The elements of that offense are: (1) an attempt or offer with force or violence to do corporal hurt to another (an assault), (2) coupled with an intent to do great bodily harm less than murder. People v. Mitchell, 149 Mich.App. 36, 38, 385 N.W.2d 717 (1986); CJI2d 17.7. Carrying a firearm or dangerous weapon with unlawful intent is found in the "Firearms" chapter of the Penal Code. The elements of that offense are: (1) carrying a firearm or dangerous weapon, (2) with the intent to unlawfully use the weapon against another person. People v. Smith, 393 Mich. 432, 437, 225 N.W.2d 165 (1975); People v. Davenport, 89 Mich.App. 678, 682, 282 N.W.2d 179 (1979); CJI2d 11.17.

In the assault statute, the emphasis is on punishing crimes injurious to other people, regardless of whether a weapon is used to effect the injury. The focus of the weapon statute is on the carrying of the weapon. While the facts of this case make it appear that the two statutes punish the same behavior or protect the same social norm, such a conclusion is not borne out in all situations. As noted above, the assault statute does not require the possession of a firearm or dangerous weapon, while the weapon statute depends upon such possession. Also, the assault statute requires the commission of an actual assault, while the weapon statute requires only the intent to use the possessed weapon illegally against another, not a completed assault. The two statutes are neither hierarchical nor cumulative. For these reasons, we conclude that defendant's double jeopardy challenge fails under both constitutions.

Defendant's second claim is that insufficient evidence was adduced to support the requisite intent element of the offense of assault with intent to commit great bodily harm less than murder. Specifically, defendant claims that the threats he made to the victim cannot be the underpinning of a finding with regard to the intent element because the actual harm or activity done, i.e., the shooting, was different than the harm threatened, i.e., that he would blow up the victim's car and house. However, defendant cites no authority for the proposition that threats of a harm different from that actually perpetrated cannot be used as evidence of the intent to do great bodily harm.

Accordingly, we have viewed the evidence in the light most favorable to the...