People v. Johnson

• Decision Date: 24 February 1986
• Docket Number: Docket No. 73073
• Citation: 381 N.W.2d 740,146 Mich.App. 429
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank JOHNSON, Jr., Defendant-Appellant. 146 Mich.App. 429, 381 N.W.2d 740
• Court: Court of Appeal of Michigan — District of US

Page 740

381 N.W.2d 740

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank JOHNSON, Jr., Defendant-Appellant.

Docket No. 73073.

146 Mich.App. 429, 381 N.W.2d 740

Court of Appeals of Michigan.

Submitted July 10, 1985.

Decided Oct. 21, 1985.

Released for Publication Feb. 24, 1986.

[146 MICHAPP 431] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty. and Ronald C. Adams, Asst. Pros. Atty., for the people.

James R. Neuhard, State Appellate Defender by Rolf E. Berg, Detroit, for defendant on appeal.

Before WAHLS, P.J., and ALLEN and JUSTIN C. RAVITZ, ^* JJ.

ALLEN, Judge.

Following a three-day trial by jury, defendant was convicted April 7, 1983, of two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm during commission[146 MICHAPP 432] of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Sentenced on May 31, 1983, to two concurrent terms of from 10 to 20 years' imprisonment, plus two years for the felony-firearm conviction, defendant appeals as of right raising three issues. The second issue presents a question of first impression.

Defendant's convictions stem from a January 6, 1983, armed robbery of the Felpausch Food Store in Battle Creek. On that evening several armed, masked men entered the store shortly before closing. Four persons inside the store observed the robbery. Also, because the store had been staked out by the police for observance, Clifford DeFeyeter, a detective-sergeant with the Michigan State Police, who was parked in the Felpausch lot, observed a lone person standing in front of the store just moments before six or seven persons bolted from the store running north. One of the persons carried a large grocery sack or plastic bag. Another person carried what appeared to be a sawed-off shotgun.

Officer DeFeyeter followed the group by car and soon spotted four individuals running between houses at 69 Boyd Street. When Defeyeter fired a warning shot in the air and identified himself as a police officer, two of the subjects hit the ground. The remaining two subjects continued fleeing, one running east and the other west. Within inches of one of the subjects lying on the ground, a .38-caliber pistol was found. At the same time Alan Tolf, a Battle Creek police officer and one of the surveillance team covering the Felpausch Store, drove to a field-like area at 20 Redner Street just east of where DeFeyeter had apprehended the two individuals. There, Officer Tolf found defendant lying underneath a large fir tree. Searching the immediate area, the officer found a .38-caliber [146 MICHAPP 433] revolver, a pair of tan men's gloves, and a tan hat which contained a homemade ski mask made from a sweater sleeve. The gloves were one foot and the hat and gun were six to ten inches from where defendant was found. Tolf also discovered tracks in the grass where defendant was found and followed them to a residence at 69 Boyd Street where DeFeyeter had confronted the four fleeing subjects moments before. Along the route of the tracks, Tolf found a dark ski mask. In the yard at 69 Boyd Street a .12-gauge sawed-off shotgun was found.

At trial, no one inside the store could identify defendant as one of the robbers. Claiming alibi, defendant testified in his own behalf. He stated that he had spent the evening of January 6, 1983, at the home of Shirley Sweet, from whom he rented a room. Later that evening he left Shirley's house and proceeded to the home of his girlfriend, Julia Sheppard. After awhile, he felt dizzy and took a walk to get some fresh air. While walking, an acquaintance offered him a ride and an opportunity to "get high". Defendant asked to be dropped off because of the heat and smoke inside the car. He was left off near the housing complex on Redner Street. Feeling the need to urinate, he stopped, removed his gloves and urinated. Suddenly he saw a car appear in the driveway, heard a shot, and ran for cover under a fir tree. The testimony of Shirley Sweet, Ken Sweet and Julia Sheppard corroborated defendant's story.

I. Did the prosecutor present sufficient evidence of defendant's participation in the armed robbery?

Defendant first contends that only circumstantial evidence was presented connecting him with the crime. According to defendant, his alibi is not inconsistent with the evidence produced by the [146 MICHAPP 434] prosecutor since the area where defendant was found was not so tightly encircled that defendant could not have wandered into the area without being spotted. CJI 4:2:01(7), defendant argues, requires the jury to accept a theory of innocence when two reasonable explanations, one indicating guilt and the other innocence, are presented. ¹ The prosecutor argues that the testimony was sufficient to reasonably convince a jury that defendant was either one of the robbers or a look-out and that the people are not required to negate every reasonable theory consistent with defendant's innocence.

Defendant does not challenge the fact that the articles found near defendant and along the tracks in the grass left by defendant were articles stolen from the store. Nor does defendant challenge the finding that the sawed-off shotgun, the ski mask, the plastic garbage bag, and gloves were articles used in the Felpausch store robbery. Defendant challenges only the sufficiency of the evidence identifying him as one of six or seven persons who robbed the store.

However, circumstantial evidence and reasonable inferences arising from it may constitute satisfactory proof of the elements of the offense. People v. Richardson, 139 Mich.App. 622, 625-626, 362 N.W.2d 853 (1984), citing People v. Hunten, 115 Mich.App. 167, 171, 320 N.W.2d 68 (1982), and People v. Mumford, 60 Mich.App. 279, 283, 230 N.W.2d 395 (1975). In the case at bar, circumstantial evidence was presented of defendant's participation in the armed robbery. The temporal and physical proximity of defendant to the store, the discovery of a gun, a ski mask and a pair of gloves [146 MICHAPP 435] under the tree close to defendant at the time of his discovery and arrest, tracks in the grass where defendant was found leading back to where Officer DeFeyter had encountered four fleeing suspects, together with the testimony of Sykes and DeFeyter that a group of six or seven individuals ran from the store, constitutes sufficient evidence from which a reasonable inference arises that defendant was one of the robbers. In our opinion, sufficient evidence was presented on the element of defendant's participation in the armed robbery to send the case to the jury.

When reviewing an issue of the sufficiency of evidence, this Court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. sub nom. Michigan v. Hampton, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). The concept of sufficiency (as distinguished from the weight to be accorded evidence) focuses upon whether the evidence, taken as a whole, justifies submission of the case to the trier of fact or requires a judgment as a matter of law. People v. Hampton, supra, p. 367, 285 N.W.2d 284.

Defendant argues that subsection (7) of CJI 4:2:01 requires the jury to accept defendant's theory of innocence when two reasonable explanations, one indicating guilt and the other innocence, are offered. Applied to the facts in the instant case, the argument is flawed in two respects. First, it assumes that the jury found defendant's explanation credible. It well may be that the jury chose not to believe defendant. Second, other than the language in subsection (7), defendant has cited no authority, and we find none, supporting the proposition[146 MICHAPP 436] that a jury is required to accept defendant's theory.

Defendant also argues that under People v. Davenport, 39 Mich.App. 252, 256, 197 N.W.2d 521 (1972), the prosecution is required to negate every reasonable theory consistent with defendant's innocence. On this issue our Court is split. In People v. Edgar, 75 Mich.App. 467, 474, 255 N.W.2d 648 (1977), this author wrote that it is sufficient if the prosecution proves its own theory beyond a reasonable doubt in the fact of whatever contradictory evidence the defense may produce. The great majority of recent panels of this Court have followed Edgar. People v. Perry, 114 Mich.App. 462, 466, 319 N.W.2d 559 (1982); People v. Kramer, 108 Mich.App. 240, 250, 310 N.W.2d 347 (1981); People v. Doran, 100 Mich.App. 795, 798-799, 300 N.W.2d 415 (1980); People v. Walker, 93 Mich.App. 189, 195, 285 N.W.2d 812 (1979); People v. Richardson, 139 Mich.App. 622, 625-626, 362 N.W.2d 853 (1984). Accordingly, we find no error as to issue I.

II. Did the district court lose jurisdiction of the case by adjourning the preliminary examination at defendant's request?

Preliminary examination of defendant was set for January 19, 1983. On that date defendant moved for dismissal or in the alternative for a continuance on grounds that counsel had not yet received a police report from the prosecution though it had been requested on January 13th. Counsel also asserted that the case was complex involving many witnesses. The district court denied the motion to dismiss but granted an adjournment stating:

"THE COURT: All right. The record should reflect [146 MICHAPP 437] that there is a proof of service in the court file indicating that the demands and appearance were served via first class mail on January 13, 1983; and, again, as I indicated in the previous cases, if it's mailed on the 13th I'm not sure when it would have been received by the Prosecution or the court, that there is a weekend in between and other times with this 12-day rule it's nigh onto impossible to be able to comply with these demands prior to the date...