People v. Hearn

• Decision Date: 24 July 1987
• Docket Number: Docket No. 90004
• Citation: 406 N.W.2d 211,159 Mich.App. 275
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Shawn HEARN, Defendant-Appellant. 159 Mich.App. 275, 406 N.W.2d 211
• Court: Court of Appeal of Michigan — District of US

Page 211

406 N.W.2d 211

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Shawn HEARN, Defendant-Appellant.

Docket No. 90004.

159 Mich.App. 275, 406 N.W.2d 211

Court of Appeals of Michigan.

Submitted Dec. 3, 1986.

Decided April 3, 1987.

Released for publication June 5, 1987.

Leave to Appeal Denied July 24, 1987.

[159 MICHAPP 276] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief Asst. Pros. Atty., and Brigid Vincent Marley, Asst. Pros. Atty., for the People.

[159 MICHAPP 277] Mark R. Hall, Detroit, for defendant-appellant.

Before DANHOF, C.J., and SHEPHERD and PORTER, ^* JJ.

PER CURIAM.

Defendant's first trial ended in a hung jury. Upon a second jury trial, defendant was convicted of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1); M.S.A. Sec. 28.788(2)(1), and unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. Defendant was sentenced to a term of imprisonment of from sixty to one hundred years on the CSC charge. On the unarmed robbery charge, defendant received a concurrent term of from ten to fifteen years.

The complainant was a passenger in an automobile that became disabled on an expressway. A man, whom the complainant later identified as defendant, stopped and offered help. Defendant convinced the complainant to go with him to a nearby gas station where he said a friend was working who would lend him tools. Defendant stated that the friend would be more likely to lend him the necessary tools to repair the car if one of the two women accompanied him as proof that there was in fact a disabled vehicle. After the complainant agreed to accompany the defendant, he drove to a dead end street. When she initially refused his demands, defendant produced a knife and held it to her throat. Some time during the sexual assault, the knife was removed from sight and not seen again. A short time after the conclusion of the assault, defendant asked the complainant for money, and she gave him three dollars. When defendant was not satisfied with that amount, the complainant signed her paycheck over to him. With respect to the taking of the money and the check, the information alleged armed [159 MICHAPP 278] robbery. However, the jury found defendant guilty of the lesser included offense of unarmed robbery.

Defendant argues that the trial court improperly instructed the jury on the elements of unarmed robbery. Defendant argues that the unarmed robbery instruction was misleading and incomplete because it failed to inform the jury that there had to be a larcenous intent at the time of the assault and that the force and violence used to accomplish the sexual assault would not be sufficient to satisfy the force requirement of the unarmed robbery statute if the taking of the property was merely an afterthought. Defendant asserts that, if the jury had been properly instructed, it is likely defendant would have been convicted of a larceny crime no greater than larceny from a person, M.C.L. Sec. 750.357; M.S.A. Sec. 28.589.

Defendant did not object to the unarmed robbery instruction and reversal is therefore inappropriate unless manifest injustice has occurred. People v. Kelly, 423 Mich. 261, 271-272, 378 N.W.2d 365 (1985). We find that manifest injustice did not occur.

Larceny from a person is defined by statute, M.C.L. Sec. 750.357; M.S.A. Sec. 28.589, as follows:

"Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years."

Unarmed robbery is defined by statute, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, as follows:

"Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being [159 MICHAPP 279] armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years."

In support of his contention that larcenous intent must exist at the time of the forceful act, defendant relies upon People v. LeFlore, 96 Mich.App. 557, 561, 293 N.W.2d 628 (1980), lv. den. 409 Mich. 927 (1980), and People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), the case upon which the LeFlore Court relied.

In Chamblis, the defendant, his brother and another man broke into the victim's apartment. Once inside, one man struck the victim in the head with a pistol, knocking him unconscious. While the victim was unconscious, one of the men took money from the victim's person. The jury found defendant guilty of a lesser included charge of larceny from a person. This Court reversed, concluding that there was no evidence produced to establish the crime of larceny from a person and that the jury should have returned a verdict of either guilty or not guilty on the armed robbery charge. People v. Chamblis, 60 Mich.App. 721, 231 N.W.2d 527 (1975). The Supreme Court reversed this Court's decision and reinstated defendant's conviction. The Supreme Court found that there was evidence introduced at trial which could have supported the jury's verdict:

"In light of the evidence adduced at trial, the jury could have believed defendant's story that he was reluctant to return to the house and intended to rob no one, and that the initial pistol crack across complainant's head by the brother was in retribution for the earlier cane beating defendant had suffered. They could have believed the complainant became unconscious and the men only then decided to take his money. If the money were [159 MICHAPP 280] taken from the complainant under those circumstances, the offense would be larceny from the person. M.C.L.A. Sec. 750.357; M.S.A. Sec. 28.589." 395 Mich. 425, 236 N.W.2d 473.

In LeFlore, the two defendants began kicking and hitting the victim after she came out of a store. During the assault, the victim's blouse was torn open and money fell from her brassiere. One of the two defendants picked the money up and the struggle continued until the two eventually made their escape. This Court held:

"In the instant case, there are insufficient factual findings as to the defendants' intent, so it is impossible to determine if adequate evidence was presented to support the unarmed robbery convictions. It is necessary then to remand to the trial court for more specific findings of fact on whether defendants intended to force complainant to part with her money by assaulting her prior to or at the time of taking, or whether, following the taking, force was purposefully inflicted to ensure complainant's loss of possession. In either case, unarmed robbery would be established. If however, the violence was perpetrated upon complainant with no larcenous intent and the intent to steal only occurred at the time of the taking, only larceny from the person and assault would be proven. People v. Jackson, 390 Mich. 621, 627, 212 N.W.2d 918 (1973)." 96 Mich.App. 562-563, 293 N.W.2d 628.

We read both Chamblis and LeFlore as requiring that larcenous intent exist at the time of the forceful act. ¹

[159 MICHAPP 281] However, Chamblis and LeFlore are distinguishable on their facts. An unarmed robbery may be committed, either by "force and violence, or by assault or putting in fear." People v. Berry, 112 Mich.App. 79, 315 N.W.2d 199 (1981). In both Chamblis and LeFlore, the robbery charges were based upon the force employed. In the instant case, it is apparent that the victim surrendered the money and her paycheck "out of fear." When a person is induced to part with property out of fear, the test to determine whether a robbery has been committed is whether "the party robbed has a reasonable belief that he may suffer injury unless he complies with the demand." People v. Kruper, 340 Mich. 114, 121, 64 N.W.2d 629 (1954). Thus the test is objective and from the victim's perspective. See, e.g., People v. Laker, 7 Mich.App. 425, 428-429, 151 N.W.2d 881 (1967) (where this Court found that the circumstances of a man with hands in pocket, ordering a [159 MICHAPP 282] waitress who was alone in a diner to empty the cash register and lie down on the floor, was sufficient proof of the inducement of fear).

There is no doubt in the instant case that the victim held a reasonable belief that she might suffer harm if she did not comply with defendant's request.

We believe that it is appropriate to distinguish Chamblis from situations where, as in the instant case, a victim surrenders property upon demand without protest or struggle after the person making the demand has subjected the victim to violence or threats of violence. It is evident from the request itself that the person making such a demand is relying upon the continuing effect of the fear he or she has created to effect compliance. Regardless of whether the defendant had planned to commit larceny when he committed the act of violence or uttered a threat of violence, the fact remains that the defendant purposely used the fear already present to accomplish the larceny. In our opinion, such is sufficient to constitute unarmed robbery. Accordingly, we decline to extend the rationale of Chamblis and LeFlore to the instant situation. We hold that, when unarmed robbery is accomplished through fear, it is not necessary that the defendant have had a larcenous intent at the time the defendant committed the act which initially induced the fear.

Because the jury was properly instructed on unarmed robbery "by putting in fear", the type of unarmed robbery which most closely fits the facts of the instant case, we find that the jury instructions did not create manifest injustice.

Defendant next argues that the trial judge who conducted the second trial abused his discretion by failing to review, when requested, a ruling by the first trial judge which permitted the prosecutor to [159 MICHAPP...