People v. Ison

• Court: Court of Appeal of Michigan
• Writing for the Court: Before DANHOF; PER CURIAM
• Citation: People v. Ison, 132 Mich.App. 61, 346 N.W.2d 894 (Mich. App. 1984)
• Decision Date: 16 March 1984
• Docket Number: Docket No. 62066
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Paul ISON, Defendant-Appellant. 132 Mich.App. 61, 346 N.W.2d 894

Page 894

346 N.W.2d 894

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Paul ISON, Defendant-Appellant.

Docket No. 62066.

132 Mich.App. 61, 346 N.W.2d 894

Court of Appeals of Michigan.

Submitted June 9, 1983.

Decided Feb. 7, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 63] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Roy D. Gotham, Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

James R. Neuhard, State Appellate Defender by Sheila N. Robertson, Detroit, for defendant-appellant on appeal.

Before DANHOF, C.J., and ALLEN and HANSEN ^*, JJ.

PER CURIAM.

Defendant pled guilty to assault with intent to commit second-degree criminal sexual conduct, M.C.L. Sec. 750.520g(2); M.S.A. Sec. 28.788(7)(2), and was sentenced to five years of probation, the first six months of which were to be spent in the county jail. On two occasions, defendant was found [132 MICHAPP 64] to have violated the terms of his probation but each time defendant was resentenced to probation under the original terms and conditions. Subsequently, defendant was charged with five counts of probation violation and was found guilty of three counts. Defendant was sentenced to imprisonment for 2 1/2 to 5 years, and he appeals as of right.

M.C.L. Sec. 771.3(1)(b); M.S.A. Sec. 28.1133(1)(b) requires that conditions of probation include a provision forbidding the probationer from leaving the state without the consent of the court. One of the counts of which defendant was convicted charged defendant with a violation of that condition. Defendant argues that such a condition violates the right to travel secured by U.S. Const., Am. XIV. However, that amendment recognizes that persons may be deprived of their liberty with due process of law. A criminal conviction constitutionally deprives the defendant of much of his liberty; convicts retain some constitutional rights, but those rights are subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). A probationer retains only those rights which are consistent with his probationary status. People v. Hardenbrook, 68 Mich.App. 640, 243 N.W.2d 705 (1976). A condition of probation restricting the probationer's right to travel may therefore be imposed without violation of the constitution.

Defendant also argues that the condition at issue was unconstitutionally vague. This argument is without merit because the meaning of the condition is clear and unambiguous; reasonable persons would not guess at its meaning or differ as to its application. See Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).

[132 MICHAPP 65] Another count of which defendant was convicted was charged as follows:

"On or about July 17, 1981, this probationer aided in the concealment of two runaway juveniles from the Our Lady of Charity Juvenile Institution in Green Bay, Wisconsin, by allowing them to stay with him for several nights in and around Ontonagon County. The probationer was aware of the fact that the girls were runaways from a Juvenile Institution. This action would constitute a violation of M.C.L. Sec. 722.152, aiding or abetting runaway juveniles, and would be a violation of Condition # 1 of the probationer's Probation Order which reads: That he shall not violate any criminal law of any state or of the United States, or any municipal or county ordinance."

M.C.L. Sec. 722.151; M.S.A. Sec. 25.264(1) provides:

"No person shall knowingly and wilfully aid or abet a child under the age of 17 years to violate an order of a juvenile court or knowingly and wilfully conceal or harbor juvenile runaways who have taken flight from the custody of the court, their parents or legal guardian."

M.C.L. Sec. 722.152; M.S.A. Sec. 25.264(2) merely establishes the penalty for violation of the preceding section.

Defendant argues that the evidence was insufficient to sustain his conviction of this count. One of the two juvenile runaways at issue, Clarissa Royston, testified that Tracy Bouhan and she encountered defendant in Ontonagon on July 17. According to Royston, defendant took them to a wedding reception and then to a shack behind his home. Royston testified that Bouhan remained at the shack but that she left and stayed with other friends.

Tracy Bouhan's testimony generally corroborated that of Royston. According to Bouhan, she [132 MICHAPP 66] spent the night of July 17 in the shack and then went on a camping trip with defendant and two other persons. Bouhan could not say how long the trip lasted but was sure that it lasted more than one day. Both Royston and Bouhan testified that defendant was aware that they were juvenile runaways.

The prosecution bears the burden of establishing a probation violation by a preponderance of the evidence; the rules of evidence other than those concerning privileges do not apply. GCR 1963, 791.4(c). Reading this standard together with the standard for sufficiency of the evidence to sustain a criminal conviction stated in People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), we conclude that evidence is sufficient to sustain a conviction of probation violation if, viewed in the light most favorable to the prosecution, it would enable a rational trier of fact to conclude that the essential elements of the charge were proven by a preponderance of the evidence.

The testimony that defendant took the two girls to a wedding reception is irreconcilably inconsistent with the notion that he was concealing them. No evidence was presented to suggest that the camping trip with Bouhan and two others involved anything which could conceivably be interpreted as concealment. Defendant's association with Royston apparently ended shortly after the reception. Even considering the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could not have concluded that concealment was shown by a preponderance of the evidence.

The prosecution points out that M.C.L. Sec. 722.151; M.S.A. Sec. 25.264(1) also forbids knowingly and wilfully [132 MICHAPP 67] harboring juvenile runaways. However, a defendant charged with probation violation is entitled to written notice of the charges against him, and probation may not be revoked for uncharged conduct. People v. Hunter, 106 Mich.App. 821, 308 N.W.2d 694 (1981); People v. Longmier, 114 Mich.App. 351, 319 N.W.2d 579 (1982); People v. Banks, 116 Mich.App. 446, 323 N.W.2d 436 (1982); People v. Graber, 128 Mich.App. 185, 339 N.W.2d 866 (1983). Because the charge here specified concealment, the prosecution cannot rely on another theory to sustain defendant's conviction.

Moreover, an "aider and abettor" is one who encourages, counsels, or assists another in the commission of a crime with the intention of rendering such help and with knowledge that a criminal act is contemplated. See, for example, People v. Spry, 74 Mich.App. 584, 594, 254 N.W.2d 782 (1977). "Harbor" in some contexts refers to the furnishing of food, shelter or other aid clandestinely or with concealment but in other contexts refers to the furnishing of such aid with the intent to encourage further violations of the law. See, for...