People v. Harris

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Harris, 266 N.W.2d 477, 82 Mich.App. 135 (Mich. App. 1978)
• Decision Date: 21 March 1978
• Docket Number: Docket No. 30265
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Calvin HARRIS, Defendant-Appellant. 82 Mich.App. 135, 266 N.W.2d 477

Page 477

266 N.W.2d 477

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Calvin HARRIS, Defendant-Appellant.

Docket No. 30265.

82 Mich.App. 135, 266 N.W.2d 477

Court of Appeals of Michigan.

March 21, 1978.

Released for Publication June 14, 1978.

[82 MICHAPP 136] Lieberman & Tukel by Miriam L. Siefer, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief App. Counsel, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and BRONSON and D. E. HOLBROOK, JJ.

PER CURIAM.

Defendant was charged with armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. Defense counsel timely requested instructions on unarmed robbery, M.C.L.A. § 750.530; M.S.A. § 28.798; larceny from a person, M.C.L.A. § 750.357; M.S.A. § 28.589; receiving or concealing stolen property (RCSP), M.C.L.A. § 750.535; M.S.A. § 28.803, and unlawfully driving away an automobile (UDAA), M.C.L.A. § 750.413; M.S.A. § 28.645. The trial court refused to instruct on RCSP or UDAA. Defendant was convicted by a jury of larceny from a person and appeals of right, raising two issues.

[82 MICHAPP 137] Defendant first contends that it was error for the trial court to refuse to give requested instructions on RCSP and UDAA in an armed robbery prosecution. This issue requires an examination of People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975).

Neither side contends nor do we find that RCSP or UDAA are necessarily included offenses.

Jones described cognate offenses as sharing several elements and being of the same class or category, but the lesser may contain some elements not found in the higher offense. In determining whether RCSP and UDAA are cognate offenses of armed robbery, we must analyze the elements of each crime.

The elements of armed robbery are: 1) the trespassory, 2) taking and 3) carrying away of the 4) personal property 5) of another 6) with intent to permanently deprive 7) from a person or in his presence 8) while armed. See M.C.L.A. § 750.529; M.S.A. § 28.797; LaFave & Scott, Criminal Law, 692.

The elements of RCSP are:

"(1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen."

People v. Matuja, 77 Mich.App. 291, 295, 258 N.W.2d 79, 81 (1977).

We find no overlapping elements between armed robbery and RCSP. Therefore, even assuming a common statutory purpose, we hold that RCSP [82 MICHAPP 138] was not a cognate lesser offense on which the trial court was required to instruct upon request.

The elements of UDAA are: 1) taking possession 2) of an automobile 3) and a willful 4) driving or taking away 5) without authority. See M.C.L.A. § 750.413; M.S.A. § 28.645; People v. Limon, 4 Mich.App. 440, 145 N.W.2d 287 (1966).

Some overlap between the elements of armed robbery and UDAA is apparent. Both require the trespassory (without authority) taking and asportation (driving away) of the property (automobile) of another. While UDAA does not require a specific intent to steal, the taking must be willful. In addition to the overlap of several elements, the offenses share a common statutory purpose: the deterrence and punishment of the theft of property. We hold that UDAA is a cognate offense of armed robbery.

A requested instruction on a cognate offense need be given only when the evidence adduced at trial would support a conviction of the lesser offense. People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975). In the case at bar, testimony at trial established that an employee of a Cadillac dealership was in an automobile. Two individuals approached the car. Defendant-appellant was identified as the one who got into the front seat; his companion entered the back seat. Defendant asked the employee to leave the car, stating that the back seat passenger had a gun. The employee saw a gun and exited the car. The back seat passenger also got out; the front seat passenger drove away. Three days later two...