People v. Hendricks
| Decision Date | 07 June 1993 |
| Docket Number | Docket No. 133148 |
| Citation | 503 N.W.2d 689,200 Mich.App. 68 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory HENDRICKS, a/k/a Tabb Braxton, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.
Donald R. Cook, Detroit, for defendant-appellant.
Before MURPHY, P.J., and MICHAEL J. KELLY and WAHLS, JJ.
Defendant was tried before a jury on one count of armed robbery and one count of assault with intent to commit murder. The jury found defendant guilty only of larceny from a person, M.C.L. § 750.357; M.S.A. § 28.589. He thereafter pleaded guilty of being an habitual offender, fourth offense, M.C.L. § 769.12; M.S.A. § 28.1084. Defendant now appeals as of right and presents a single issue: Is the offense of unlawfully driving away an automobile (UDAA), M.C.L. § 750.413; M.S.A. § 28.645, a cognate lesser included offense of armed robbery? We conclude that it is not, and affirm.
Defendant stole the complainant's automobile while she was pumping gasoline into it. According to the complainant, when she objected, defendant stated, "Bitch, I will blow your brains out if you don't get away from the car." Defendant had one hand in his pocket, and the complainant believed that he had a gun. Defendant got into the automobile and drove away. The complainant had left her purse inside the vehicle. Defendant was later stopped by the police and attempted to run over an officer with the automobile when he was ordered to shut off the engine. Defendant crashed the vehicle after an officer fired a shot. The complainant's purse was found in the trunk. Forty-five dollars were missing. Defendant testified on his own behalf. He acknowledged taking the complainant's vehicle, but asserted that he had done so under duress. According to defendant, he took the vehicle when he saw another automobile that he believed carried several persons who wanted to kill him over a debt. Defendant denied that he had taken the money from the complainant's purse and denied that he had been armed.
At the conclusion of the proofs, defendant requested that the jury be instructed regarding various lesser offenses, including UDAA. The trial court refused to give this instruction, apparently on the ground that it was undisputed that the automobile had been taken from the complainant in her presence, establishing some type of larcenous offense.
On appeal, defendant claims that UDAA is a cognate lesser included offense of armed robbery, that evidence adduced at trial supported the instruction, and that it was error for the trial court to refuse to give the instruction. 1 According to defendant, reversal is required upon the authority of People v. Harris, 82 Mich.App. 135, 266 N.W.2d 477 (1978). We do not disagree with defendant's understanding of Harris. We do, however, disagree with Harris itself and believe that the case was wrongly decided, at least within the context of the law as we find it today.
A cognate lesser included offense is an offense that shares some elements of a higher offense and is of the same class or category as the higher offense, but which may also contain some elements not found in the higher offense. People v. Beach, 429 Mich. 450, 461, 418 N.W.2d 861 (1988); People v. Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975). The essential elements of armed robbery are (1) an assault, (2) a felonious taking of property from the victim's person or presence, and (3) the defendant must be armed with a weapon described in the statute. People v. Newcomb, 190 Mich.App. 424, 430, 476 N.W.2d 749 (1991). The essential elements of UDAA are (1) possession of a vehicle, (2) driving the vehicle away, (3) that the act is done wilfully, and (4) the possession and driving away must be done without authority or permission. People v. Dutra, 155 Mich.App. 681, 685, 400 N.W.2d 619 (1986). The two offenses share a common element, namely, a wrongful taking of another's property.
Beyond that similarity, however, the offenses are quite different. Unlike armed robbery, UDAA does not require an intent to steal, that is, to permanently deprive the owner of his property. People v. Andrews, 45 Mich.App. 354, 359, 206 N.W.2d 517 (1973). UDAA does not require proof of the use of a weapon, or that the property was taken from a victim's person or presence. Indeed, by definition UDAA is...
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People v. Hendricks
...consisted of few common elements, and that, more fundamentally, they were not of the same class or category of offenses. 200 Mich.App. 68, 503 N.W.2d 689 (1993). On the defendant's application, we granted leave to appeal. 444 Mich. 963, 518 N.W.2d 477 The duty of the trial judge to instruct......
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Landon v. Titan Ins. Co.
...the act is done wilfully, and (4) the possession and driving away must be done without authority or permission." People v. Hendricks, 200 Mich.App. 68, 71, 503 N.W.2d 689 (1993), aff'd 446 Mich. 435, 521 N.W.2d 546 (1994). See also People v. Andrews, 45 Mich.App. 354, 356, 206 N.W.2d 517 Th......
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Boylan v. Nagy
...the offense “is not a larceny because it does not require an intent to permanently deprive a victim of property.” People v. Hendricks, 200 Mich.App. 68, 71; 503 N.W.2d 689 (1993). Larceny requires proof that the defendant intended to “deprive the owner of” the stolen property. People v. Mar......
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People v. Hurst, Docket No. 154005
...to deprive the owner permanently of the property that is the subject of the robbery, whereas UDAA does not. People v. Hendricks, 200 Mich.App. 68, 71, 503 N.W.2d 689 (1993), lv. gtd. 444 Mich. 963, 518 N.W.2d 477 (1994). Nor does UDAA require proof that a weapon was used or that the propert......